Nos. 05-05-00846-CR, 05-05-00847-CR
Opinion issued June 30, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F04-26436-Sq and F04-26437-SQ. Affirmed.
Before Justices MORRIS, O'NEILL, and MAZZANT.
Opinion By Justice MORRIS.
In these two cases, a jury convicted Percy William Shelton, Jr. of unauthorized use of a motor vehicle and evading arrest. He complains in his first two issues that the evidence against him is factually insufficient to prove that he is the person who operated the motor vehicle and tried to evade police. In his third issue, he complains the trial court erred in the evading arrest case by failing to charge the jury sua sponte on an element of the offense. Concluding appellant's complaints are without merit, we affirm the trial court's judgments.
Factual Background
While patrolling in a high-crime area of Garland, Texas, a police officer noticed a Cadillac signaling to make a left turn. He could see that the driver was a black male in his twenties and that there were no passengers. When the driver saw the officer's marked squad car, the car made a right turn instead of a left and began traveling away from the officer. The police officer thought the behavior was suspicious, so he checked the Cadillac's license plate number and learned the car was stolen. He immediately began to pursue the Cadillac without turning on his flashing lights or siren. The Cadillac kept traveling. When the officer finally caught up to the Cadillac, he activated his car's lights and siren. The Cadillac began moving faster, and the driver began driving more recklessly. The Cadillac exceeded the speed limit and ran a flashing red light. The driver attempted to make a turn, but the Cadillac was moving too fast. He drove into an abandoned gas station, ran through several crape myrtle trees and continued to travel, dragging one of the crape myrtle trees behind him. The chase then continued to an open gas station. As the Cadillac sped through the station, it hit one of the gas pumps so hard the pump became inoperable. The Cadillac's driver continued to try to evade the police officer. Still dragging the crape myrtle tree, the driver of the Cadillac attempted to make a turn on a residential street, but instead drove into the front yard of the corner house and hit two trees next to the sidewalk there. The Cadillac then struck a van parked in the house's driveway and a car parked in the street. Next, the driver of the Cadillac attempted to drive between that house and the house next to it. In so doing, he ran over several items stacked up in the yard for an estate sale and then smashed into the side of the corner house, striking the bedroom wall of a seventeen-year-old boy at approximately midnight. At that point, the officer got out of his car and ran toward the Cadillac. The driver of the Cadillac exited the car and initially began to run toward the officer. The officer and another police officer shone their flashlights on the driver. Immediately the officer who had been following the Cadillac for the entire chase recognized the driver as appellant. The officer recognized appellant "from prior dealings with him." Appellant then turned around from the officer, jumped on the hood of the Cadillac, and jumped over a fence to try to escape. He ran for approximately two minutes before being caught by a backup officer while he was running through a nearby creek. The original officer saw appellant once he was handcuffed and confirmed he was the same man he had seen get out of the Cadillac. When the officer asked appellant his name, appellant said his name was Percy Combs. Appellant testified in his own defense. He claimed that on the night of the offense, he had been at his uncle's house drinking and playing dominoes. He claimed he was walking home to his mother's house when he heard "a sound like gunfire, a bunch of noise" and began to run. He claimed he became "nervous and paranoid." After he had traveled "two streets down," appellant claimed, he came to an immediate stop when a patrol car pulled in front of him. According to appellant, the officer in the car asked him why he was running and immediately handcuffed him and put him in the patrol car. Appellant admitted giving the police a fake name. He claimed he did so because he was nervous because he had just gotten out of jail for evading arrest. He admitted he had pleaded guilty to evading arrest and unauthorized use of a motor vehicle on July 29, 2003 and served nine months in state jail for the offenses. On cross-examination, appellant testified that he ran though the creek when he saw the officer pull in front of him on the street. He stated that scratches on his arms at the time of his arrest were not from jumping fences but from "roughhousing" with his dogs. During the punishment phase of appellant's trial, appellant pleaded true to two enhancement paragraphs alleging appellant's September 2003 convictions for evading arrest and unauthorized use of a motor vehicle. Appellant stipulated that he had committed the offenses. The judgments were admitted into evidence by the State. Discussion
In his first and second issues, appellant challenges the factual sufficiency of the evidence in each case. He specifically disputes the evidence showing he operated the complained-of car and evaded the police. Appellant asserts there is insufficient proof to show that, although he was found in the creek, he was same person who drove the Cadillac during the police chase. In reviewing the factual sufficiency of the evidence, we review all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). We defer to the fact finder as the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). Here, the main police officer involved in the chase of the Cadillac testified that there were no passengers in the Cadillac. The officer never lost track of the Cadillac and saw the driver just after he left the Cadillac. In addition, the officer confirmed that the man police found running in the creek — appellant was the man who had driven the Cadillac. Moreover, the officer recognized appellant because he had previously had dealings with him. The jury in this case was entitled to disbelieve appellant's testimony that he was a victim of mistaken identity, and we must we defer to its determination on this matter. We resolve appellant's first two issues against him. In his third issue, appellant complains the trial court erred by failing sua sponte to include an element of the felony evading arrest offense in the jury charge. He specifically complains the charge did not include the element of a previous evading arrest conviction. In Calton v. State, the Texas Court of Criminal Appeals recently held that a previous evading arrest conviction is an element of felony-level evading arrest. See Calton, 176 S.W.3d 231, 234 (Tex.Crim.App. 2005). The trial court omitted this element of the offense from the jury charge in appellant's case. The jury was not required to find that appellant had previously been convicted of evading arrest before convicting him of evading arrest in the guilt-innocence phase of trial. The additional fact of appellant's previous evading arrest conviction was not considered until the punishment phase of the trial. The trial court, rather than the jury, set appellant's punishment. Appellant admits, however, that even if the trial court erred in submitting the incomplete charge to the jury, there is no reversible error in the case unless he was egregiously harmed by the error. See Almanza v. State, 686 S.W.2d 157, 171 (1984); see also Washington v. Recuenco, No. 05-83, 2006 WL 1725561, at *5 (June 26, 2006) (holding where jury instruction omits an element of the offense, a harmless-error analysis applies); Martin v. State, No. PD-1940-05, 2006 WL 1750891, at *3 (Tex.Crim.App. June 28, 2006) (holding that where trial court errs in submitting a jury charge that contains no reference to judicial required previous convictions, error is analyzed for harm "under our familiar Almanza standard"). Reviewing the record in this case, we conclude appellant was not egregiously harmed by the trial court's failure to include the previous-conviction element in the jury charge. The jury did not find appellant guilty of enhanced, felony-level evading arrest, but instead found him guilty of the basic evading arrest offense. Furthermore, appellant admitted his previous evading arrest conviction during his testimony at the guilt-innocence phase of trial. At the punishment phase of trial, he pleaded true to the State's allegation that he had committed the previous evading arrest offense and stipulated that he had committed the offense. There is no question that, in this case, had the jury been instructed on the additional element, it still would have convicted appellant of felony evading arrest. Accordingly, there was no egregious harm in the case. We resolve appellant's third issue against him. We affirm the trial court's judgments.