No. 12-03-00117-CR
Opinion delivered July 14, 2004. DO NOT PUBLISH.
Appeal from the 173rd Judicial District Court of Henderson County, Texas.
Panel consisted of WORTHEN, C.J., GRIFFITH, J., and DeVASTO, J.
SAM GRIFFITH, Justice.
Michael Laron Farmer ("Appellant") was convicted for evading arrest. Appellant raises two issues on appeal. We reverse and remand BACKGROUND In the early morning hours of December 6, 2001, Officer Daniel Abrams ("Abrams") of the Athens Police Department arrested Appellant for evading arrest or detention. Appellant was indicted for the offense, a state jail felony, pleaded not guilty, and proceeded to trial before a jury. At trial, Abrams testified that he was on stationary patrol in a marked vehicle, parked on the north side of the Henderson County courthouse in Athens. While parked, he witnessed Appellant stopping at a red light at the intersection of Highways 19 and 31. At the next traffic light, Appellant stopped for a few seconds, then disregarded the red light and proceeded through the intersection, making a left turn. Abrams stated that he initiated his emergency lights and began pursuing the vehicle. According to Abrams, Appellant made a couple of turns and then accelerated. Appellant failed to stop at a four-way stop sign and turned left onto Edmonson Street. After traveling about a half block west on Edmonson, Appellant pulled his vehicle to the side of the road and stopped. Abrams, in uniform, approached the vehicle with his gun drawn and ordered Appellant to get out of the car and onto the ground on his stomach. He took Appellant into custody without incident. Appellant commented after Abrams arrested him that he "just didn't need another ticket." On cross-examination, Abrams admitted that various buildings could have blocked Appellant's view at two of the intersections through which Appellant drove. Appellant testified on his own behalf. He admitted he saw a patrolling police car in motion near the intersection of State Highways 19 and 31. Realizing he had a broken taillight, he was concerned he might be issued a ticket if the officer noticed his taillight. Appellant stopped at a red light, and, seeing no traffic, proceeded through the intersection before the light turned green. Appellant then outlined the turns he made in his effort to avoid being seen by the officer. He stated that he stopped at each stop sign and gave the appropriate turn signal for each turn. His last turn was onto Edmonson Street. After traveling a short distance, Appellant observed a police car's lights some distance behind him. Appellant stopped at this point and began to retrieve his license and insurance information. Appellant expressed surprise and dismay that the officer approached him with his gun drawn. Appellant denied attempting to run from the officer or evade him. He testified that he stopped to wait on the officer as soon as he first saw the officer's emergency lights. Appellant denied driving any faster than 45 miles per hour even though Abrams surmised Appellant's speed to be in the 70-miles-per-hour range. He denied seeing the emergency lights or hearing a siren on the patrol car prior to the time he stopped. He claimed he did not realize Abrams was pursuing him until after he turned on Edmonson. After both parties closed, Appellant objected to the court's charge and requested submission of the lesser included misdemeanor offense of fleeing or attempting to elude a peace officer. The trial court denied the request, and the jury found Appellant guilty of evading arrest or detention as indicted. The trial court sentenced Appellant to confinement for twelve months, probated for two years. Appellant filed a motion for new trial, and the trial court held a hearing, taking the matter under advisement. However, the court did not rule on the motion, and consequently, it was overruled by operation of law. This appeal ensued.
JURY CHARGE
In his first issue, Appellant asserts the trial court erred by denying his request for a jury instruction on the lesser included offense of fleeing or attempting to elude a peace officer. Applicable Law When determining whether, as Appellant contends, the jury should have been charged on the offense of fleeing or attempting to elude a peace officer, we apply a two-step analysis. See Moore v. State, 969 S.W.2d 4, 8 (Tex.Crim.App. 1998). First, we decide whether the offense is a lesser included offense as defined in article 37.09 of the code of criminal procedure. TEX. CODE CRIM. PROC. ANN. art. 37.09 (Vernon 1981); Moore, 969 S.W.2d at 8. A lesser included offense is defined according to the terms of the offense charged as well as the facts of the case: "An offense is a lesser included offense if . . . it is established by proof of the same or less than all of the facts required to establish the commission of the offense charged." TEX. CODE CRIM. PROC. ANN. art. 37.09(1). Accordingly, our analysis must be made on a case-by-case basis. Bartholomew v. State, 871 S.W.2d 210, 212 (Tex.Crim.App. 1994). The second step of our analysis requires us to evaluate the evidence to determine whether there is some evidence that would permit a rational jury to find that the defendant is guilty only of the lesser offense, and not of the greater. Lofton v. State, 45 S.W.3d 649, 651 (Tex.Crim.App. 2001); Moore, 969 S.W.2d at 8. The evidence must be evaluated in light of the entire record. Id. In our evaluation of the record, we must find some evidence from which a rational jury could acquit the defendant on the greater offense, while convicting him of the lesser included offense. Id. We may not consider whether the evidence is credible, controverted, or in conflict with other evidence. Id. If there is any evidence from any source that negates or refutes the element establishing the greater offense, or if the evidence is so weak that it is subject to more than one reasonable inference regarding the element at issue, the jury should be charged on the lesser included offense. Schweinle v. State, 915 S.W.2d 17, 18 (Tex.Crim.App. 1996). Analysis A person commits the offense of evading arrest if he intentionally flees from a person he knows is a peace officer attempting to lawfully arrest or detain him. See TEX. PEN. CODE ANN. § 38.04(a) (Vernon Supp. 2003). A person commits the offense of fleeing or attempting to elude a police officer if he operates a motor vehicle and wilfully fails or refuses to bring the vehicle to a stop or flees, or attempts to elude, a pursuing police vehicle when given a visual or audible signal to bring the vehicle to a stop. TEX. TRANSP. CODE ANN. § 545.421(a) (Vernon 1999); Walker v. State, 95 S.W.3d 516, 519 (Tex.App.-Fort Worth 2003, pet. ref'd). The pursuing officer must be in uniform, displaying his badge, and driving an appropriately-marked police vehicle. Tex. Transp. Code Ann. § 545.421(b); Walker, 95 S.W.3d at 519. Lesser Included Offense
In the first part of our analysis, the critical issue is whether proof of the offense charged, evading arrest, actually included proof of fleeing or attempting to elude a peace officer. See Walker, 95 S.W.3d at 519 (citing Schweinle, 915 S.W.2d at 18). In Walker, the court concluded that the only difference between the two statutes, as applied to the facts before it, is the element of evading arrest that requires the person's knowledge that the officer was attempting to lawfully arrest or detain him. Walker, 95 S.W.3d at 519. Consequently, the court concluded, because the elements are included within the proof necessary to establish evading arrest, fleeing or attempting to elude a peace officer is a lesser included offense of evading arrest. Id. Walker is factually indistinguishable from the case at hand Therefore, in this case, we likewise conclude that fleeing or attempting to elude a peace officer is a lesser included offense of evading arrest. Evidence at Trial
We must now determine whether the evidence would permit a jury to find Appellant guilty only of the lesser included offense. At trial, Appellant denied driving excessive rates of speed, explaining why it was impossible for his older-model diesel truck to accelerate in the manner Abrams described. Abrams testified that he did not track Appellant's speed on his radar. He also stated his video equipment malfunctioned and did not begin taping until the time he handcuffed Appellant. Abrams admitted that Appellant stopped the vehicle of his own accord, i.e., a road block was not established nor did the officer shoot out the tires of Appellant's vehicle. He also noted that Appellant was cooperative and that he was able to make the arrest "without incident." Finally, Abrams conceded that Appellant's view could have been blocked by buildings at two of the intersections through which Appellant passed. This evidence, if believed by the jury, negates the knowledge element of evading arrest. Therefore, a rational jury could have found Appellant guilty of only the lesser included offense of fleeing or attempting to elude a peace officer. Because the evidence is more than a scintilla, Appellant was entitled to a submission on the lesser included offense. See Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App. 1994). Consequently, we sustain Appellant's first issue. DISPOSITION
Having sustained Appellant's first issue, we reverse the trial court's judgment and remand the case for a new trial. Because Appellant's first issue is dispositive, we need not address his second issue. TEX. R. APP. P. 47.1.