                                       In The

                                Court of Appeals

                    Ninth District of Texas at Beaumont

                               __________________

                               NO. 09-18-00330-CR
                               __________________

                  DONALD RAY REDMOND JR., Appellant

                                         V.

                  THE STATE OF TEXAS, Appellee
__________________________________________________________________

               On Appeal from the County Court at Law
                       Liberty County, Texas
                       Trial Cause No. 105756
__________________________________________________________________

                          MEMORANDUM OPINION

      A jury convicted appellant Donald Ray Redmond Jr. of evading arrest or

detention as a prior felony offender and assessed punishment at three hundred sixty-

five days of confinement in the county jail and a $4000 fine. In two appellate issues,

Redmond contends that the trial court erred by denying his motion for directed

verdict and argues that trial counsel provided ineffective assistance. We affirm the

trial court’s judgment.


                                          1
                                   BACKGROUND

      Redmond was charged with intentionally fleeing from “Officer Walter,” a

person Redmond knew was a peace officer who was attempting lawfully to arrest or

detain him. At trial, Randall Walter testified that he is a patrol officer with the

Liberty Police Department. Walter testified that while he was patrolling in a marked

patrol unit on November 6, 2017, he received a call from dispatch regarding a vehicle

that was suspected to contain narcotics. Walter found a vehicle that matched the

description provided by dispatch, and he began to monitor the vehicle. According to

Walter, before the camera in his vehicle clicked on, he saw “the vehicle merge all

the way to the right and cross over the center line[,]” and he testified that failure to

maintain a single lane constitutes a traffic offense. Walter testified that he saw

Redmond’s sedan pass the designated stopping point or intersection, which is also a

traffic offense, and Walter initiated a traffic stop.

      Walter testified that when he pulled Redmond over, Redmond was alone in

the vehicle. Walter explained that when Redmond got out of the vehicle, he had a

small dog, and Redmond picked the dog up and held onto it. According to Walter,

Redmond had a metal Yeti cup with a lid in his other hand. During trial, Walter

identified Redmond as the driver of the vehicle. Walter directed Redmond to the

back of the car and noted that Walter’s “body actions were indicating nervousness.”

                                            2
Walter explained that Redmond eventually gave him the Yeti cup, and Walter could

see a dark object on top of yellow liquid inside the cup, so he opened the cup and

saw what he believed to be “several different types of narcotics[.]” Walter testified

that Redmond “spiked the dog on the ground and took off running.” Walter and

another officer followed Redmond and eventually arrested him. The video from the

traffic stop was admitted into evidence and published to the jury. Walter explained

that the video shows that Redmond stopped past the designated stop line.

      Defense counsel lodged an oral motion to suppress, asserting that there was

no legal basis for the warrantless stop. The State argued that Officer Walter testified

that he saw Redmond commit traffic violations. The trial judge denied the motion to

suppress. Defense counsel did not object to the proposed guilt-innocence charge.

The jury convicted Redmond of evading arrest or detention and assessed punishment

at three hundred sixty-five days of confinement in the county jail and a $4000 fine,

and the trial judge pronounced sentence in accordance with the jury’s verdict.

                                    ISSUE ONE

      In issue one, Redmond contends that the trial court erred by denying his

motion for directed verdict. Specifically, Redmond argues that the State “failed to

prove the identity of the law enforcement officer as specifically alleged on the face

of the charging instrument[.]” Redmond argues that the evidence was legally

                                          3
insufficient because there was a variance between the allegations in the indictment

and the proof at trial. According to Redmond, “[t]he State does not name Randall

Walter in the charging instrument, and it was never amended,” and “the record does

not clarify or explain . . . that in fact Officer Walter and the witness Randall Walter

are the same person.” According to Redmond, the State must prove the identity of

the specific law enforcement officer who was lawfully discharging his duties when

Redmond fled. Redmond further asserts that “[w]hat is at issue is whether the

deficiently drafted charging instrument would subject appellant to the risk of being

prosecuted later for the same crime.” Redmond maintains that there is “zero

evidence of Officer Walter lawfully attempting to detain the appellant.”

      “We treat a point of error complaining about a trial court’s failure to grant a

motion for directed verdict as a challenge to the legal sufficiency of the evidence.”

Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). Under a legal

sufficiency standard, we assess all the evidence in the light most favorable to the

prosecution to determine whether any rational trier of fact could find the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

319 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We give

deference to the jury’s responsibility to fairly resolve conflicting testimony, to weigh



                                           4
the evidence, and to draw reasonable inferences from basic facts to ultimate facts.

Hooper, 214 S.W.3d at 13.

      A person commits the offense of evading arrest “if he intentionally flees from

a person he knows is a peace officer . . . attempting lawfully to arrest or detain him.”

Tex. Penal Code Ann. § 38.04(a). Randall Walker testified that he is a patrol officer

with the Liberty Police Department, and that he was driving a marked patrol unit

when he stopped Redmond’s vehicle. The video of the stop showed that Walker was

in uniform. Walker explained that when Redmond gave him the Yeti cup and Walker

saw that it contained narcotics, Redmond fled and was eventually arrested when

Walker and another officer pursued him.

      Viewing the evidence in the light most favorable to the prosecution, we

conclude that a rational jury could have found Redmond guilty of evading arrest

beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Hooper, 214 S.W.3d at

13. In addition, the allegation in the charging instrument that Redmond fled from

“Officer Walker” was not a variance; rather, it merely involves a missing allegation.

See Grant v. State, 970 S.W.2d 22, 22-23 (Tex. Crim. App. 1998). The charging

instrument merely omitted Walker’s first name, and Redmond waived this defect by

failing to object to it at trial. See id. at 23 (holding that “officer” as stated in the

charging instrument was clearly the officer’s title rather than his first name, the

                                           5
omission of the officer’s first name from the charging instrument was not a variance,

and appellant waived the defect by failing to object at trial). We conclude that the

evidence was legally sufficient to support the verdict. Therefore, the trial judge did

not err by overruling Redmond’s motion for directed verdict. Accordingly, we

overrule issue one.

                                    ISSUE TWO

      In issue two, Redmond argues that trial counsel’s failure to request a jury

instruction pursuant to article 38.23 of the Texas Code of Criminal Procedure, object

to the charge, and call any witnesses constituted ineffective assistance. See Tex.

Code Crim. Proc. Ann. art. 38.23 (providing that evidence obtained in violation of

the U.S. or Texas Constitution is inadmissible).

      To establish ineffective assistance, Redmond must satisfy the following test:

      First, the defendant must show that counsel’s performance was
      deficient. This requires showing that counsel made errors so serious that
      counsel was not functioning as the “counsel” guaranteed the defendant
      by the Sixth Amendment. Second, the defendant must show that the
      deficient performance prejudiced the defense. This requires showing
      that counsel’s errors were so serious as to deprive the defendant of a
      fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see Perez v. State, 310 S.W.3d

890, 892-93 (Tex. Crim. App. 2010). “Any allegation of ineffectiveness must be

firmly founded in the record, and the record must affirmatively demonstrate the

                                          6
alleged ineffectiveness.” Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.

1999). “Appellate review of defense counsel’s representation is highly deferential

and presumes that counsel’s actions fell within the wide range of reasonable and

professional assistance.” Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

“Under normal circumstances, the record on direct appeal will not be sufficient to

show that counsel’s representation was so deficient and so lacking in tactical or

strategic decisionmaking as to overcome the presumption that counsel’s conduct was

reasonable and professional.” Id.

      The record does not indicate that Redmond filed a motion for new trial to

allege ineffective assistance. The record is silent as to trial counsel’s strategies and

tactics. See Estrada v. State, 313 S.W.3d 274, 311 (Tex. Crim. App. 2010).

Moreover, Redmond cannot demonstrate that, but for counsel’s alleged errors, the

outcome of his trial would have been different. See Graves v. State, 310 S.W.3d 924,

929 (Tex. App.—Beaumont 2010, pet. ref’d). Nor is this a case in which trial

counsel’s ineffectiveness is apparent from the record. See Freeman v. State, 125

S.W.3d 505, 507 (Tex. Crim. App. 2003). Under these circumstances, Redmond

cannot defeat the strong presumption of reasonable professional assistance. See

Thompson, 9 S.W.3d at 814. We overrule issue two. Having overruled both of

Redmond’s issues, we affirm the trial court’s judgment.

                                           7
      AFFIRMED.

                                           ______________________________
                                                  STEVE McKEITHEN
                                                      Chief Justice

Submitted on October 2, 2019
Opinion Delivered October 30, 2019
Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.




                                       8
