No. 05-04-00425-CR
Opinion Filed January 26, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-55726-QP. Affirm.
Before Justices BRIDGES, RICHTER, and LANG.
Opinion By Justice RICHTER.
A jury convicted Charles Dean Tillery of evading arrest or detention while using a motor vehicle. The jury found two enhancement paragraphs true and assessed punishment at fifteen years' confinement. In a single point of error, appellant contends the evidence is factually insufficient to support the conviction. We affirm.
Background
At approximately 12:25 a.m. on September 20, 2003, Dallas police officers Don Alexander and Wes Bell saw a car traveling towards them without headlights. Bell, who was driving a marked patrol car, made a U-turn and got behind the suspect vehicle to make a traffic stop. The officers saw appellant driving the vehicle and an unidentified woman sitting in the front passenger seat. Bell activated the overhead flashing lights. Appellant did not stop, but he slowed down to about ten or fifteen miles-per-hour. Bell saw appellant stick his left hand out of the window and wave, but appellant did not stop. Appellant waved at the officers three or four times while he drove slowly down the street. Appellant turned down a residential street, then accelerated at a high rate of speed. Bell and Alexander chased appellant through the residential neighborhood. Appellant got onto Interstate 35 and sped up to eighty miles-per-hour. Bell and Alexander were one car-length behind appellant. They shined their spotlight on appellant's vehicle and used their loud speaker to order appellant to stop. Appellant exited the highway, ran through a red light, then drove another quarter-mile. Appellant turned into a wooded road that led toward a house and stopped in front of the house. Bell approached the driver's side and ordered appellant out of the car at gunpoint. Alexander approached the passenger's side and got the woman passenger out of the vehicle. Appellant told Bell the reason he did not stop was because he had borrowed the car and he believed the car had been stolen. Applicable Law
In reviewing the factual sufficiency of the evidence, we view 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); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). In examining a factual sufficiency challenge, we defer to the fact finder's determination of the credibility of the evidence. See Johnson, 23 S.W.3d at 11. Discussion
Appellant argues the evidence is factually insufficient to prove he intentionally or knowingly evaded arrest from Alexander, the complainant listed in the indictment, because Bell was the officer driving the patrol car, Bell was the officer who arrested appellant, and Alexander was merely a passenger who expended his energy in arresting the passenger in appellant's car. Appellant contends naming Alexander as the complainant in the indictment constitutes a material variance and is reversible error. We disagree. The penal code defines the "element of the offense" as the forbidden conduct; the required culpability; any required result; and the negation of any exception to the offense. See Tex. Pen. Code Ann. § 1.07(a)(22) (Vernon Supp. 2004-05). The elements of evading arrest or detention while using a vehicle are: (1) intentionally fleeing; (2) from a person the actor knows is a peace officer; (3) attempting lawfully to arrest or detain him; and (4) using a vehicle while in flight. See Tex. Pen. Code Ann. § 38.04(a), (b)(1) (Vernon 2003). The law does not define the peace officer's name as a substantive element of the offense, nor does it require the named police officer to be driving the patrol car. Here, both Bell and Alexander identified appellant as the driver of the vehicle they tried to stop. Bell and Alexander were both peace officers and were both involved in the chase when appellant tried to evade them. Bell and Alexander testified appellant sped through a residential area and entered and exited the highway in an attempt to evade them. After conducting a neutral review of the record, we conclude the evidence of guilt is not too weak to support a finding of guilt beyond a reasonable doubt, nor is the contrary evidence so strong that the beyond-a-reasonable-doubt standard could not have been met. See Zuniga, 144 S.W.3d at 484-85. We overrule appellant's sole point of error. We affirm the trial court's judgment.