                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-11-00114-CR

DANIEL ESTORAGE O'QUINN,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee


                           From the 220th District Court
                             Hamilton County, Texas
                             Trial Court No. CR07576


                          MEMORANDUM OPINION


      Daniel Estorage O’Quinn was convicted of the offense of evading arrest or

detention in a motor vehicle for which he was sentenced to ten years in prison. TEX.

PEN. CODE ANN. § 38.04(a), (b)(2)(A) (West 2011). O’Quinn complains that the evidence

was insufficient for the jury to have found beyond a reasonable doubt that (1) he knew a

peace officer was attempting to arrest or detain him while he was driving, and (2) that

he intentionally fled from the officer. Because we find that the evidence was sufficient,

we affirm the judgment of the trial court.
Sufficiency

       O’Quinn complains that the evidence was insufficient to establish beyond a

reasonable doubt that he knew that a peace officer was attempting to arrest or detain

him while he was driving his vehicle. The Court of Criminal Appeals has expressed our

standard of review of a sufficiency issue as follows:

       In determining whether the evidence is legally sufficient to support a
       conviction, a reviewing court must consider all of the evidence in the light
       most favorable to the verdict and determine whether, based on that
       evidence and reasonable inferences therefrom, a rational fact finder could
       have found the essential elements of the crime beyond a reasonable doubt.
       Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
       13 (Tex. Crim. App. 2007). This “familiar standard gives full play to the
       responsibility of the trier of fact fairly to resolve conflicts in the testimony,
       to weigh the evidence, and to draw reasonable inferences from basic facts
       to ultimate facts.” Jackson, 443 U.S. at 319. “Each fact need not point
       directly and independently to the guilt of the appellant, as long as the
       cumulative force of all the incriminating circumstances is sufficient to
       support the conviction.” Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).

       The Court of Criminal Appeals has also explained that our review of “all of the

evidence” includes evidence that was properly and improperly admitted. Conner v.

State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. at

326. Further, direct and circumstantial evidence are treated equally: “Circumstantial

evidence is as probative as direct evidence in establishing the guilt of an actor, and


O’Quinn v. State                                                                           Page 2
circumstantial evidence alone can be sufficient to establish guilt.” Hooper v. State, 214

S.W.3d at 13. Finally, it is well established that the factfinder is entitled to judge the

credibility of witnesses and can choose to believe all, some, or none of the testimony

presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

Evading Arrest in a Vehicle

       To convict him of the charged offense, the State had to prove that while using a

vehicle, O’Quinn intentionally fled from a person he knew to be a peace officer

attempting lawfully to arrest or detain him. See TEX. PENAL CODE ANN. § 38.04 (West

Supp. 2011). A defendant’s knowledge that a police officer is trying to arrest or detain

him or her is an essential element of the offense of evading arrest. Rodriguez v. State, 799

S.W.2d 301, 302 (Tex. Crim. App. 1990); Hobyl v. State, 152 S.W.3d 624, 627 (Tex. App.—

Houston *1st Dist.+ 2004) (“*T+he accused must know that the person from whom he

flees is a peace officer attempting to arrest or detain him.”), pet. dism’d, improvidently

granted, 193 S.W.3d 903 (Tex. Crim. App. 2006).

The Facts

       The arresting officer observed O’Quinn driving down a two-lane farm to market

road while the officer was sitting at an intersection monitoring traffic. O’Quinn was

driving an old Ford pickup that did not have a rear view mirror. O’Quinn showed on

radar to be traveling at 65 miles per hour in a 60 mile per hour zone. The officer turned

onto the road behind O’Quinn, activated his overhead lights, and began pursuit. When


O’Quinn v. State                                                                      Page 3
the officer activated his lights the video recording device in the officer’s vehicle began

recording the pursuit, and that recording was admitted into evidence.              O’Quinn

traveled down the road for approximately 24 seconds on the video and then turned

onto a dirt road. The officer was traveling at a speed to attempt to catch up to O’Quinn,

and turned onto the dirt road approximately five seconds after O’Quinn and activated

his siren when O’Quinn turned onto the dirt road. No other vehicles were traveling on

the road in either direction.

       O’Quinn and the officer traveled at what the officer estimated was

approximately 45 miles per hour down the dirt road, which ended at a dairy. The

officer testified that in his opinion O’Quinn sped up on the straight portions of the dirt

road. At the end of the road, O’Quinn stopped his truck quickly, exited the truck, and

took off running away from the officer. O’Quinn was apprehended after a short foot

pursuit by the officer. According to the video, the entire pursuit lasted for 68 seconds

from the activation of the officer’s lights until O’Quinn fled from the officer on foot.

       O’Quinn’s brother had been a police officer for almost twenty years at the time of

O’Quinn’s arrest. Officer O’Quinn testified that the truck O’Quinn was driving was not

capable of traveling fast, was very noisy, and did not have a rear view mirror. Further,

Officer O’Quinn testified that he had seen the video of the pursuit and that in his

opinion, it did not rise to the level of evading arrest in a motor vehicle because it was of

too short a duration, there were no evasive maneuvers like rapid acceleration or


O’Quinn v. State                                                                       Page 4
braking, and O’Quinn stopped at a business in the country rather than a remote

location.

Knowledge of Attempt to Arrest or Detain

       In his first issue, O’Quinn complains that the evidence was insufficient for the

jury to have determined that he knew the officer was trying to arrest or detain him. In

support of this argument, he cites to Griego v. State and Redwine v. State. See Griego v.

State, 345 S.W.3d 742 (Tex. App.—Amarillo 2011, no pet.); Redwine v. State, 305 S.W.3d

360, 362 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d).

Griego v. State

       In Griego, two police officers in separate vehicles were traveling with lights and

sirens on in the opposite direction of Griego. Griego, 345 S.W.3d at 746. Griego’s vehicle

matched the description of the vehicle the suspect for which the officers were looking.

After rounding a bend, the officers turned around and began pursuit of Griego’s

vehicle. When they spotted Griego, Griego was turning onto another street. The court

of appeals determined that there was little or no evidence that Griego could have seen

the officers or known that they were trying to pursue him while traveling down that

first street. Griego, 345 S.W.3d at 751. By the time the officers reached the street Griego

had turned onto, Griego had traveled some distance and was indicating a second turn.

The officers turned and were on the same street as Griego for eight seconds before

Griego made the second turn. Griego completed that turn and parked in a residential


O’Quinn v. State                                                                     Page 5
driveway near where he had turned. Griego exited the car and walked up to the

residence holding a beer can when the officers arrived. After the officers arrived, he

failed to follow the officers’ directions and was arrested. Griego, 345 S.W.3d at 747.

       The Amarillo Court of Appeals held that the evidence was insufficient for the

jury to have determined that Griego knew the officers were attempting to arrest or

detain him “as he drove for a matter of seconds for little more than a block.” Griego, 345

S.W.3d at 753-54. However, we find that Griego is distinguishable from the facts before

us in that here O’Quinn traveled for approximately 24 seconds down the first road with

the officer in pursuit with lights flashing and no other traffic present, and then for an

additional 44 seconds down the dirt road using lights and siren where O’Quinn

ultimately stopped. The distance traveled was a good distance farther than a city block.

Additionally, while Griego casually walked up to a residence upon exiting his vehicle,

O’Quinn stopped abruptly, jumped out of his truck, and ran away from the officer. We

may infer an individual’s mental state from actions and statements during and after an

incident. See Blozinski v. State, No. 14-07-00664-CR, 2009 Tex. App. LEXIS 2398, at *11-12

(Tex. App.—Houston *14th Dist.+ Apr. 2, 2009, no pet.) (mem. op. on reh’g, not

designated for publication) (citing Alexander v. State, 229 S.W.3d 731, 740 (Tex. App.—

San Antonio 2007, pet. ref'd).




O’Quinn v. State                                                                         Page 6
Redwine v. State

       Redwine was driving on a county road and he met a police car going the

opposite direction. Redwine v. State, 305 S.W.3d 360, 361 (Tex. App.—Houston [14th

Dist.+ 2010, pet. ref’d). Believing that Redwine was driving “too near the center of the

undivided road,” the officers turned around to follow Redwine, but did not activate

their lights or siren. Id. at 361-62. A written statement from Redwine was introduced

stating that he wanted to “avoid contact” with the deputies because he had a suspended

license. Redwine turned onto a dirt driveway. The officers found the truck empty, but

shouted “Sheriff!” and after some time, Redwine walked out of the nearby forest, where

he was arrested. After a jury trial, Redwine was convicted for evading arrest using a

vehicle. Id. at 362.

       Redwine’s contention was that the police made no show of authority until after

he had already exited his vehicle and, therefore, the evidence was legally insufficient to

prove he knew, while in his vehicle, that police were attempting to arrest or detain him.

Id. at 363. The evidence was found to be legally insufficient.

       This case is distinguishable, however. The officer turned on his overhead lights

almost immediately, and turned on his siren approximately halfway through the chase.

O’Quinn can be seen on the video fleeing from his parked vehicle as the officer arrives.

There was no show of authority from the officers in Redwine until he had exited his

vehicle.


O’Quinn v. State                                                                    Page 7
       Under the facts of this case, we find that the evidence was sufficient for the jury

to have found that O’Quinn knew that the officer was attempting to arrest or detain him

while he was driving his pickup. We overrule issue one.

Intentionally Fled

       In his second issue, O’Quinn complains that the evidence was insufficient for the

jury to have found that he intentionally fled from the officer in his vehicle because

during the pursuit he did not accelerate appreciably, only approximately 30 seconds

passed between the time he contends the officer came into view and he stopped his

vehicle, and because he promptly stopped at the first appropriate location where he

would not disrupt dairy operations.

       In addition to proving that a suspect knew that an officer was attempting to

arrest or detain him, the State must prove that the suspect intentionally fled from the

officer. In determining whether a defendant intended to evade, the relevant inquiry is

whether there was an attempt to flee or delay the detention. Baines v. State, No. 06-10-

00069-CR, 2010 Tex. App. LEXIS 8777 at *13 (Tex. App.—Texarkana Nov. 3, 2010, pet.

ref’d). While the length and speed of the chase are factors in considering whether there

was an attempt to evade, they are not determinative by themselves. Id.

       Any delayed compliance can be considered an attempt to evade arrest or

detention. Horne v. State, 228 S.W.3d 442, 446 (Tex. App.—Texarkana 2007, no pet.)

“’*F+leeing’ is anything less than prompt compliance with an officer’s direction to stop.”


O’Quinn v. State                                                                    Page 8
Id. Even if there is no intent to ultimately evade, intent to evade arrest or detention

even for a short time is sufficient to support a conviction for evading arrest with a

motor vehicle. Id.; see also Mayfield v. State, 219 S.W.3d 538, 541 (Tex. App.—Texarkana

2007, no pet.) (observing that law does not require high-speed fleeing or even effectual

fleeing; it requires an attempt to get away from a known officer of the law).

       The jury, as factfinders, could reasonably have determined that O’Quinn did

accelerate on the dirt road from the video recording and the officer’s testimony.

Further, the jury could reasonably have determined that O’Quinn could have stopped

at some other place along the road but did not make an attempt to do so. We find that

the video recording supports those determinations. The evidence was sufficient for the

jury to have determined that O’Quinn intentionally fled from the officer. We overrule

issue two.

Conclusion

       Having found no reversible error, we affirm the judgment of the trial court.




                                         TOM GRAY
                                         Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed July 26, 2012
Do not publish
[CR25]
O’Quinn v. State                                                                      Page 9
