

Opinion issued January 7, 2010
 
 









 
 
 
 
 
 
 
 
In The
Court of Appeals
 For
The
First District of Texas
 

 
NO. 01-08-00188-CR
 

 
CARLOS CASTILLO, Appellant
 
V.
 
THE STATE OF TEXAS, Appellee
 

 
On Appeal from the 208th District Court
Harris County, Texas
Trial Court Cause No. 1104753
 

 
MEMORANDUM  OPINION
A
jury convicted appellant, Carlos Castillo, of escaping from police
custody.  See Tex. Penal Code Ann. § 38.06(a)(1)
(Vernon Supp. 2009).  The trial court
assessed punishment at 25 years’ confinement. 
In three issues, appellant challenges the legal sufficiency of the
evidence, specifically arguing that there was no evidence that he was arrested
because he was neither handcuffed nor told that he was under arrest and because
there was no evidence that appellant possessed a usable quantity of marihuana, i.e.,
four ounces or more.  We modify the
judgment of the trial court and we affirm as modified.
                                  Background
In
February 2007, an undercover police officer with the narcotics division of the
Pasadena Police Department received an anonymous tip that a shipment of
marihuana would be delivered to a certain address that same day.  The officer drove past the address the
informant had given him, recorded the license plate number of a vehicle parked
in the driveway, and parked down the street to set up surveillance of the
house. The officer determined that the vehicle parked in the driveway was
registered to a man named “Jose,” which the officer thought was consistent with
the informant=s tip that the marihuana would be
delivered to a man named “Joe.”
Around
6:00 p.m., the undercover officer spotted appellant driving a maroon truck very
slowly through the neighborhood, looking in every direction, even looking
directly at the officer.  Appellant left
the truck running in the center of the street and went inside the house that
the officer was watching.  The officer
saw appellant greet a Hispanic man at the door. 
While appellant was inside the house, the officer learned that the
maroon truck was licensed to two people who lived in Edinburg, Texas, near the
Mexican border.  After about 20 minutes,
appellant and the other man came out of the house, stood in the yard talking,
and shook hands.  Appellant went back to
his truck and drove away; the other man returned to the house.
The
undercover officer, who was working with a uniformed officer in a marked car,
broadcast information about appellant=s truck and where it was headed.  The undercover officer then drove around the
corner, where he saw appellant park the maroon truck beside a house.  After several minutes, a four-door, black
pickup truck pulled into the driveway. 
Appellant left the maroon truck running and got out to greet the driver
of the black truck.  The two men shook
hands and looked in the back of the black truck. The other man lifted up a tarp
or covering, showing appellant something. 
The undercover officer testified at trial that appellant “appeared to be
very jubilant.  He was happy.”  The men replaced the covering, shook hands,
and patted each other on the shoulder.
Appellant
and another man each took a large, bulky object out of the truck and into the
house, locking the black truck and arming the alarm system as they left.  To the undercover officer, the object looked
like a woven, plastic gunnysack with bright orange writing all over it.  The officer could see that the object had
rope handles, but he ruled out the possibility that it could be a
suitcase.  The men came out about 20 minutes
later and got into the maroon truck where appellant sat in a passenger seat.  The undercover officer contacted uniformed
officer R. Carro, and followed the truck.
The
undercover officer watched the maroon truck turn without signaling, and he
shared this information with Officer Carro who then pulled behind the maroon
truck.  Officer Carro saw the maroon
truck make another turn without using a turn signal, and he initiated a traffic
stop with the undercover officer=s agreement.
Officer
Carro observed that the driver was very nervous.  When the driver rolled down the window, Officer
Carro smelled the strong odor of burned marihuana emitting from the
vehicle.  Officer Carro did a pat-down
search and felt something that he believed was a weapon, which turned out to be
drug paraphernalia.  Officer Carro
arrested the driver for possession of drug paraphernalia.
When
Officer Carro stopped the maroon truck, the undercover officer also pulled
over.  The undercover officer approached
the truck from the passenger side, and he found appellant sitting in the rear
passenger-side seat.  The officer
identified himself as a police officer and asked appellant for
identification.  The officer asked
appellant background questions in English, and appellant responded in
English.  Appellant told the undercover
officer that he had been visiting friends in Pasadena and had just come from a
restaurant.  Appellant denied ever having
been on the streets in question. The undercover officer told appellant that he
was investigating a marihuana case and that he had been watching appellant and
knew that appellant did not just come from a restaurant.  Although the undercover officer testified at
trial that his unmarked car was not equipped with a video camera, he testified
that he may have told appellant that he captured the entire transaction on
videotape.  The officer explained at
trial that this sort of ruse is a commonly used investigatory technique. 
The
undercover officer asked appellant if he would return to the house where the
black truck was parked to verify that he had never been there before, and
appellant agreed to do so, riding over to the house in the back of a marked
police car.  The undercover officer
testified at trial that there is a steel barrier between the backseat and the
front seat and that the back doors open only from the outside.  
The
house where the black truck was parked was about a minute away from where
Officer Carro stopped the maroon truck. 
The undercover officer knocked on the front door, and the woman who
opened the door gave consent to search the house and the truck, which she said she
owned.  As the undercover officer
approached the black truck, he smelled the odor of green, unburnt
marihuana.  He lifted the blanket that he
saw earlier and found large block objects in woven plastic gunnysacks, with
orange, brown, and black printing on them. 
They were similar to the object that he saw appellant carry into the
house earlier that evening.  The officer
opened one of the packages with a pocketknife, and he found a felony amount of
marihuana. 
The
undercover officer then saw appellant=s reaction to his discovery:
As I walked away from the vehicle
and was shutting the door and was going to go back inside the house, I actually
was going to talk to Officer Carro and could see [appellant] through the glass
of the vehicle. . . . He was paying very close attention to our
activities.  He was glaring out the
window and he appeared like the wind had come out of your sails.  I don=t know
how to describe it other than just >slumped.= . . . [H]e just was looking out the window and was
just kind of slumped over, as before he was, you know sitting upright.
 
The
undercover officer went back inside the house briefly, and when he came
outside, appellant was not in the police car. 
Officer Carro testified that he saw the felony amount of marihuana in
the black truck, and then he heard “glass breaking, a window being kicked out.”  When Officer Carro turned around, he saw
appellant climbing out of the police car through the broken window.  Officer Carro advised dispatch that appellant
was running away, and he chased appellant, yelling Astop@ at least seven times.  At one point, Officer Carro had to stop
chasing appellant to avoid being hit by oncoming traffic.  Additional police officers, including a K-9
unit, responded to the scene and set up a perimeter to catch appellant.  Appellant continued running away, crossing
three lanes of highway traffic, jumping over a three-foot wall, and jumping 10
feet from the highway to the frontage road before being re-arrested by another
police officer.  


Sufficiency of the Evidence
In
his first issue, appellant contends that the evidence was legally insufficient
to prove his escape conviction because he was never handcuffed or told that he
was under arrest.  Appellant argues that
because he voluntarily got into the police car, he was not in custody, and he
was merely being temporarily detained for investigation. 
A.      Standard
of Review
When
evaluating the legal sufficiency of the evidence, we view the evidence in the
light most favorable to the verdict and determine whether any rational trier of
fact could have found the essential elements of the offense beyond a reasonable
doubt.  Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Drichas v. State, 175 S.W.3d
795, 798 (Tex. Crim. App. 2005).  The
standard is the same for both direct and circumstantial evidence cases.  King v. State, 895 S.W.2d 701, 703
(Tex. Crim. App. 1995).  We do not
resolve any conflict of fact, weigh any evidence, or evaluate the credibility
of any witnesses, as this is the function of the trier of fact. See Adelman
v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Matson v. State,
819 S.W.2d 839, 843 (Tex. Crim. App. 1991). 
In conducting our review, we resolve any inconsistencies in the evidence
in favor of the verdict.  Matson,
819 S.W.2d at 843.


B.      The Law of Arrest
“A
person commits an offense if he escapes from custody when he is . . . under arrest
for . . . an offense.”  Tex. Penal Code Ann. § 38.06(a) (Vernon
2003).  A completed arrest distinguishes
the offense of escape from the offenses of evading or resisting arrest.  Sample v. State, 292 S.W.3d 135, 137,
n.1 (Tex. App.CHouston [14th Dist.] 2008, pet. ref=d) (citing Medford v. State,
13 S.W.3d 769, 773 (Tex. Crim. App. 2000)). 
An arrest is complete when: (1) a person=s liberty of movement is successfully
restricted or restrained, either by an officer=s physical force or the suspect=s submission to the officer=s authority; and (2) if a reasonable
person in the suspect=s position would have understood the situation to constitute
a restraint on freedom of movement of the degree which the law associates with
formal arrest.  Medford, 13 S.W.3d
at 773; see Tex. Code Crim. Proc.
Ann. art. 15.22 (Vernon 2005) (“A person is arrested when he has been
actually placed under restraint or taken into custody by an officer or person
executing a warrant of arrest, or by an officer or person arresting without a
warrant.”).




“Because
the occurrence of an arrest cannot be determined by any bright‑line test,
whether an arrest has occurred must be determined on a case‑by‑case
basis by examining the totality of the circumstances.”  Sample, 292 S.W.3d at 137.  In addition, “what may begin as a consensual
encounter . . . may evolve into an arrest.” 
Josey v. State, 981 S.W.2d 831, 838 (Tex. App.CHouston [14th Dist.] 1998, pet. ref=d) (quoting Francis v. State,
992 S.W.2d 176, 178 (Tex. Crim. App. 1996) (Baird, J., concurring and
dissenting)).  
To
effectuate a full custodial arrest, an officer must have probable cause to
believe the person arrested has committed or is committing an offense.  See Amores v. State, 816 S.W.2d 407,
411 (Tex. Crim. App. 1991).  Probable
cause to arrest exists when the facts and circumstances within the arresting
officer=s knowledge and of which he has
reasonably trustworthy information are sufficient in themselves to warrant a
person of reasonable caution to believe an offense has been or is being
committed.  See id. at 413.  Probable cause requires more than mere
suspicion but far less evidence than that needed to support a conviction or to
support a finding by a preponderance of the evidence.  See Guzman v. State, 955 S.W.2d 85, 87
(Tex. Crim. App. 1997).  Probable
cause may arise from information supplied by a confidential informant, provided
the information is corroborated.  See
Eisenhauer v. State, 678 S.W.2d 947, 952 (Tex. Crim. App. 1988).       
C.      Under
Arrest?




Here,
the undercover officer received an anonymous tip that a man named Joe would
receive a shipment of marihuana.  This
tip was corroborated, in part, by the undercover officer=s discovery that the vehicle parked
in front of the house specified by the informant was registered to a man named
Jose.  The undercover officer followed
appellant and watched him carry a package into a house, after inspecting the
shipment of what was later determined to be marihuana in the black truck,
shaking hands with the other man, and patting him on the shoulder.  The appellant lied to the undercover officer
about his having been at the house that was the target of the
investigation.  The undercover officer
informed appellant that the officer was conducting a marihuana investigation,
that he had been watching appellant, and that he knew appellant had not just
come from a restaurant as appellant claimed. 
When appellant agreed to return to the house to verify whether he had
been there, the undercover officer placed appellant in the back of a police car
that was fitted with a steel screen and that had a door that could only be
opened from the outside.
Once
back at the house, appellant watched the undercover officer approach the black
truck and cut into a package similar to the one appellant had taken to the
house earlier.  After the undercover
officer confirmed that the packages in the black truck were marihuana, he
watched the appellant “glare” at him and then slump in his seat, a gesture that
indicated appellant=s awareness that the officer had discovered the
marihuana.  Finally, neither the
undercover officer nor any other officer ever told appellant that he was free
to leave.  




We
agree with appellant to the extent that, when he initially entered the back
seat of the patrol car, he was not in custody but was merely being temporarily
detained for investigation.  The
question, however, is whether the temporary investigation of appellant had
become a custodial arrest because of the development of probable cause to
arrest appellant for possession of marihuana once the contents of the packages,
similar to the one appellant had taken into the house, were established as
felony amounts of marihuana.  Because
appellant=s liberty of movement was being
restricted, the question is whether a reasonable person in appellant=s position would have understood that
he was under arrest.  See Medford,
13 S.W.3d at 773.  While appellant was
not expressly told by the officers that he was under arrest, as in Sample,
we hold that a reasonable person in appellant=s position who:  (1) had been informed that he was being taken
back to the house for a marihuana investigation; (2) had been told that the
officers had observed him at the house (and, of course, he knew that he had
taken a package containing marihuana from the black truck into the house); (3)
had observed the officer=s discovery of the marihuana in similar packages in the black
truck thereby producing the information necessary to arrest him; (4) had
indicated by his body language his awareness that the officers had the
information necessary to arrest him; and (5) was being detained in the back
seat of a patrol car, would have understood the situation to constitute a restraint
of freedom of movement to the degree which the law associates with formal
arrest.  See id. 
Viewing
the evidence in the light most favorable to the verdict, we hold that the
evidence was legally sufficient to prove that appellant escaped from custody
while he was under arrest, and we overrule appellant=s first issue.
D.      Possession




In
his second and third issues, appellant contends that there is no evidence of
his connection to the marihuana in the black truck, which is the only marihuana
recovered, and that there is no evidence that he possessed a felony amount of
marihuana.  To the extent that appellant=s points are challenging the
sufficiency of the evidence to prove that appellant was guilty of possession of
marihuana, we decline to address them. The State does not have to prove the
offense for which appellant was arrested beyond a reasonable doubt, in addition
to proving that appellant was under arrest for said offense.  To the extent that appellant is challenging
the lawfulness of appellant=s arrest, appellant has submitted no authority to support the
proposition that the State has any such burden. 
The offense of escape is committed by escaping from custody when under
arrest.  There is no statutory
requirement that the arrest be lawful. 
Having determined in point one that appellant was under arrest when he
escaped, we decline to address the lawfulness of that arrest.[1]

We
overrule appellant=s second and third issues. 

Reforming
the Judgment
The
State alleged two enhancement paragraphs in the indictment, unauthorized use of
a motor vehicle and burglary of a motor vehicle, both of which were felonies at
the time of conviction, 1986 and 1991. 
The trial court sentenced appellant to 25 years’ imprisonment.  The judgment reflects appellant=s conviction for escape as a
second-degree felony.  During the
punishment phase, the trial court stated that it found both enhancements to be
true.  However, the judgment reflects AN/A@ as to both the plea and the findings
for each enhancement. 




Escape
is a felony of the third degree if the “actor is under arrest for, charged
with, or convicted of a felony.”  Tex. Penal Code Ann. § 38.06(c)(1)
(Vernon Supp. 2008).  The punishment
range for a third degree felony is 2 to 10 years’ imprisonment.  Tex.
Penal Code Ann. § 12.34(a) (Vernon 2003).  Escape is a felony of the second degree “if
the actor to effect his escape causes bodily injury.”  Id. §
38.06(d) (Vernon Supp. 2009).  The
punishment range for a second-degree felony is 2 to 20 years’ imprisonment.  Id. §
12.33(a) (Vernon 2003).  Here, there was
no evidence of appellant=s having caused bodily injury, so the judgment should have
indicated that appellant was convicted on the third degree felony of
escape.  Moreover, because the record
also reflects that appellant contested the truth of the enhancement allegations
and that the trial court found both enhancements true, the judgment should
reflect pleas of “not true” and findings of “true” to the enhancement
paragraphs rather than “N/A.”
The
enhancement statute also provides: 
(d) . . . [I]f it is shown on the trial of a felony
offense other than a state jail felony punishable under Section 12.35(a) that
the defendant has previously been finally convicted of two felony offenses, and
the second previous felony conviction is for an offense that occurred
subsequent to the first previous conviction having become final, on conviction
he shall be punished by imprisonment in the Texas Department of Criminal
Justice for life, or for any term of not more than 99 years or less than 25
years.       
 




Id. § 12.42(d) (Vernon Supp. 2009).  Thus, appellant=s punishment of 25 years’ imprisonment,
which was agreed upon by both appellant=s counsel and the State, is the
minimum punishment for a third or habitual offender under section 12.42(d) of
the Texas Penal Code.
Based
on the record, we reform the trial court=s judgment to reflect that appellant
was found guilty of the third degree, not the second degree felony escape, and
to reflect appellant=s plea of “not true” and the trial court=s findings of “true” to each
enhancement paragraph, rather than “N/A.”
Conclusion
Having
reformed the judgment of the trial court to show that appellant was found
guilty of the third degree felony escape, to show that appellant pleaded “not
true” to the enhancement paragraphs, and to show that the trial court found
both enhancement paragraphs to be “true,” we affirm the judgment as reformed.
                                                              
 
 
Tim Taft
Justice
 
 
Panel consists of Chief Justice Radack and Justices
Sharp and Taft.[2]
 




Do not publish. 
Tex. R. App. P.
47.2(b).  
 
Justice Sharp, dissenting.




1       If we were to address the sufficiency of the evidence
supporting appellant=s possession of a felony amount of marihuana, we would
find the evidence sufficient. Here, the undercover officer and Officer Carro both
testified that there was a felony amount of marihuana in the black truck. The
undercover officer testified that he saw appellant take a package, which looked
just like the packages of marihuana later discovered in the black truck, from
the black truck into the house.  Also,
appellant=s actionsCdriving
extremely slowly around the neighborhood, shaking hands with the other man and
patting him on the back, appearing happy or jubilant upon seeing the shipment
of marihuana, glaring at the undercover officer, and slumping in the seatCare all actions that support appellant=s knowing possession of the marihuana.  Viewing the evidence in the light most
favorable to the verdict, we would hold that the evidence was legally
sufficient to prove that appellant escaped from custody while he was under
arrest for knowingly possessing a felony amount of marihuana. 


2           Justice
Tim Taft, who retired from the First Court of Appeals effective June 1, 2009,
continues to sit by assignment for the disposition of this case, which was
submitted on May 26, 2009.


