Affirmed and Opinion filed December 1, 2015.




                                          In The

                      Fourteenth Court of Appeals

                                 NO. 14-14-00681-CR

                        JACOB BRENT SMITH, Appellant
                                            V.
                         THE STATE OF TEXAS, Appellee

                     On Appeal from the 185th District Court
                             Harris County, Texas
                         Trial Court Cause No. 1410410

                                    OPINION


       Today, we decide, among other things, whether a driver who led officers on
a freeway chase and jumped out of a moving car is entitled to a jury instruction on
the lesser included offense of evading arrest or detention on foot as opposed to the
greater offense of doing so in a vehicle.1 In four issues, appellant Jacob Brent

       1
       Committing the offense on foot generally is a misdemeanor. Tex. Pen. Code § 38.04(b).
Committing the offense while using a vehicle is a third degree felony. Id.
Smith challenges (1) the sufficiency of the evidence in support of his conviction
for felony evading arrest or detention in a vehicle, (2) the trial court’s refusal to
submit jury instructions on two lesser included offenses, and (3) the trial court’s
overruling his objection to the prosecutor’s comment during closing argument. We
affirm.

                                        Background

       Two officers on patrol received a radio dispatch report that a vehicle
matching the description of a stolen car was traveling southbound on Interstate 45
in Houston, Texas. The officers parked on the shoulder of the freeway in their
marked patrol car and waited for the car to pass them. A car matching the
description in the dispatch, including the license plate number, passed the patrol
car. The officers began following the car. Two more officers in a second patrol car
joined the pursuit behind the first patrol car. Once both patrol cars were behind the
stolen car, the officers activated the sirens and lights on their patrol cars.2

       The driver of the stolen car was in the far left lane when officers started
pursuing him, and he “cut across four lanes of traffic and got over to the right side
shoulder.” A passenger in the stolen car then threw what was later identified as a
“meth pipe” out of the passenger side window, and the driver continued
southbound on I-45. The driver then exited onto Highway 59 northbound. At that
point, the officer driving the first patrol car pulled up next to the stolen car, and the
officer on the passenger side saw the driver, later identified as appellant. The
officer in the passenger seat testified that appellant also saw him.3 Appellant then

       2
         Officers testified that because they were initiating a felony stop involving a possible
stolen vehicle, they were required to have two patrol cars present before activating emergency
equipment to ensure backup.
       3
         The officer testified, “He looked over to his left, made eye contact, . . . made a hand
gesture; whatever that meant, I have no clue. But he just kind of acknowledged my presence and
                                               2
moved into the emergency lane to get ahead of the patrol car, cutting off several
cars in the process.

       Appellant eventually exited onto Interstate 10 traveling eastbound, moved
into the far left lane, slowed down to approximately five to ten miles per hour, and
jumped out of the window of the moving vehicle.4 He subsequently jumped over
the median and ran across the westbound lanes of I-10 in front of oncoming traffic.
Officers pursued appellant across traffic on foot. Appellant subsequently slid down
an embankment where he injured his ankle and surrendered because he could no
longer run.

       Officers testified that the car chase lasted four to five minutes over four to
five miles, and appellant was traveling approximately the speed limit of 60 miles-
per-hour. Appellant’s driving was “very erratic, unsafe for other motorists, [and]
unsafe for [the officers].” In heavy traffic, appellant swerved through traffic, made
fluctuations in his speed and rapid lane changes without signaling, and drove onto
the shoulder several times. He cut off nearby drivers and caused them to slam on
their brakes. One officer testified that appellant “was trying to get away from us,
he . . . tried slowing down to throw us off, [and] he would get real slow and at the
last second, dart over.”

       The jury found appellant guilty of the third degree felony of evading arrest
or detention with a vehicle. Appellant pleaded true to two prior felony convictions.
The trial judge enhanced the punishment based on those convictions and assessed
punishment at 30 years’ confinement.



then just continued to go straight.”
       4
         The passenger then took over driving but pulled over and was arrested by the officers in
the second patrol car.

                                               3
                                        Discussion

      Appellant challenges the legal sufficiency of the evidence to support his
conviction and the trial court’s denial of his requests for lesser included offense
jury instructions on evading arrest or detention on foot and attempted evading
arrest or detention in a vehicle. Appellant also complains that the trial court
overruled his objection to the prosecutor’s statement in closing argument that
appellant could have subpoenaed officers or talked to them before trial to ascertain
their anticipated testimony at trial.

      I.     Legal Sufficiency

      In his first issue, appellant challenges the sufficiency of the evidence
supporting a finding that he intended to flee from officers or that officers lawfully
attempted to arrest or detain him. When reviewing sufficiency of the evidence, we
view all of the evidence in the light most favorable to the verdict and determine,
based on that evidence and any reasonable inferences therefrom, whether any
rational factfinder could have found the elements of the offense beyond a
reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011)
(citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)). We do not sit as
thirteenth juror and may not substitute our judgment for that of the factfinder by
reevaluating the weight and credibility of the evidence. Isassi v. State, 330 S.W.3d
633, 638 (Tex. Crim. App. 2010). Rather, we defer to the responsibility of the
factfinder to fairly resolve conflicts in testimony, weigh the evidence, and draw
reasonable inferences from basic facts to ultimate facts. Id. This standard applies
equally to both circumstantial and direct evidence. Id. Each fact need not point
directly and independently to the appellant’s guilt, as long as the cumulative effect
of all incriminating facts is sufficient to support the conviction. Hooper v. State,
214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

                                            4
      A person commits third degree felony evading arrest or detention if, while
using a vehicle, “he intentionally flees from a person he knows is a peace
officer . . . attempting lawfully to arrest or detain him.” Tex. Pen. Code § 38.04(a)-
(b); see also Ex parte Carner, 364 S.W.3d 896, 899 n.5 (Tex. Crim. App. 2012).
“A person acts intentionally, or with intent, with respect to the nature of his
conduct or to a result of his conduct when it is his conscious objective or desire to
engage in the conduct or cause the result.” Tex. Pen. Code § 6.03.

      Evidence of Intentional Flight. A person commits a crime under Section
38.04 if he knows a police officer is attempting to arrest or detain him but
nevertheless refuses to yield to a police show of authority. Redwine v. State, 305
S.W.3d 360, 362 (Tex. App.—Houston [14th Dist.] 2010, pet ref d). “‘[F]leeing’ is
anything less than prompt compliance with an officer’s direction to stop.” Horne v.
State, 228 S.W.3d 442, 446 (Tex. App.—Texarkana 2007, no pet.). Intent may be
inferred from conduct. Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App.
1991), overruled on other grounds by Fuller v. State, 829 S.W.2d 191 (Tex. Crim.
App. 1992); see also Muhammed v. State, 331 S.W.3d 187, 193 (Tex. App.—
Houston [14th Dist.] 2011, pet. ref’d).

      Appellant was driving in the left lane. Two police cars pulled in behind him,
and the drivers activated their emergency lights and sirens. Appellant immediately
cut across four lanes of traffic and drove onto the shoulder. The passenger threw
out a meth pipe, and appellant kept driving. See Baines v. State, 418 S.W.3d 663,
670 (Tex. App.—Texarkana 2010, pet. ref’d) (concluding reasonable person could
conclude defendant was fleeing while he considered what to do with contraband
when he discarded marijuana out of his car before stopping). Despite officers’
pursuit with their emergency lights and sirens activated, appellant kept traveling
for four to five minutes. See Mayfield v. State, 219 S.W.3d 538, 540-41 (Tex.

                                          5
App.—Texarkana 2007, no pet.) (concluding factually sufficient evidence
supported jury’s verdict when officers followed defendant in marked police car
with emergency lights flashing and siren sounding for an extended period of time).
Moreover, appellant drove erratically and endangered other drivers and the officers
in an apparent attempt to avoid apprehension, jumped out of a moving car to flee
on foot across several lanes of oncoming traffic, and slid down an embankment
before injuring his ankle and surrendering.

      Appellant argues that, despite this evidence, the following evidence supports
his argument that he did not intend to flee: there were no exits on the portion of the
freeway where appellant was traveling and stopping on the freeway is dangerous,
appellant was not speeding, appellant may not have seen the lights on the patrol
cars or heard the sirens, the offense reports did not reflect appellant’s erratic
driving or evasive maneuvers, and officers gave inconsistent testimony regarding
how long they were following appellant. These arguments are unpersuasive.

      Officers testified that even though there were no available exits off the
freeway, appellant had several opportunities to stop on the shoulder, failed to do
so, and in fact, exited onto two other freeways before being apprehended. Also, the
fact that appellant was not speeding is of no moment. While speed, distance, time,
and behavior of driving while being pursued may be factors in considering whether
the requisite intent existed, no particular speed, distance, time, or behavior is
required if other evidence establishes intent. See Horne, 228 S.W.3d at 445-46
(holding slow driving over a short period of time could constitute evading
detention or arrest); see also Mayfield, 219 S.W.3d at 541 (holding an offense
under section 38.04 does not require proof of high-speed or effectual fleeing, just
intentional fleeing and noting, “fleeing slowly is still fleeing”).

      One officer testified that appellant looked at him and made a hand signal that

                                           6
indicated appellant saw the officer, and appellant also drove erratically by
swerving through traffic, making fluctuations in his speed, changing lanes quickly,
driving onto the shoulder several times, and cutting off other drivers and causing
them to slam on their brakes. On this evidence, a reasonable factfinder could have
concluded that appellant knew the officers were pursuing him and intended to flee.

       Finally, the jury, as the judge of credibility, was entitled to resolve any
inconsistencies in the evidence. See Isassi, 330 S.W.3d at 638; see also Sanchez v.
State, No. 14-11-00684-CR, 2013 WL 1197878, at *3 (Tex. App.—Houston [14th
Dist.] Mar. 26, 2013, no pet.) (mem. op.). Officers testified that they did not know
why a description of appellant’s evasive driving maneuvers was not included in the
offense reports, but it was not necessary to include that information because it was
not an element of the offense. The officers testified they nevertheless remembered
the details of appellant’s erratic driving. The jury reasonably could have believed
that the officers remembered these details despite the lack of detail in the offense
reports.5

       As to how long officers followed appellant, one officer initially testified that
they followed appellant for ten to fifteen minutes. He later clarified that

       5
          Defense counsel thoroughly cross-examined the officers regarding why these details
were left out of the reports. Thus, the jury was able to consider the lack of detail in the reports
alongside the credibility of the officers. Defense counsel asked one officer regarding appellant’s
evasive driving, “Would you agree that that’s an important piece of evidence on an evading
arrest in a motor vehicle?” The officer responded, “No, I think the most important evidence is
that we initiated our emergency equipment and he refused to stop.” On redirect, State’s counsel
elicited testimony that the offense report indicated appellant “was cutting off cars.” Moreover,
the officer who testified that appellant made a hand gesture at him explained that he did not
include that detail in the offense report as follows: “I don’t believe that’s an element of evading
in a motor vehicle, so . . . I did not put that.” With regard to omitting details of appellant’s
driving, that officer also stated, “I felt like it was not necessary [to include those details]. . . . I
have never seen anybody drive erratic to that point that has not known that we were following
them trying to conduct a motor vehicle stop and putting lives in danger.” The jury reasonably
could infer from this testimony that the officer remembered what happened even though it was
not in the offense report.

                                                   7
approximately ten to fifteen minutes elapsed from the time he heard the radio
dispatch report until appellant was taken into custody, but the officers only
followed appellant for five to six minutes, which was consistent with the other
officers’ testimony that the chase lasted four to five minutes. The jury was entitled
to resolve any inconsistencies in the officers’ accounts over how long the
encounter lasted. See Sanchez, 2013 WL 1197878, at *3.

      Evidence of Lawful Attempt to Arrest or Detain Appellant. Appellant
argues that the State did not establish the lawfulness of the officers’ attempt to
arrest or detain him. We disagree. Officers may lawfully stop a vehicle and
conduct an investigative detention when the vehicle matches the description of a
stolen vehicle in a radio dispatch report. See, e.g., Mount v. State, 217 S.W.3d 716,
727-29 (Tex. App.—Houston [14th Dist.] 2007, no pet.). Reasonable suspicion
authorizing such a stop and detention exists if the officer has specific, articulable
facts that, when combined with rational inferences from those facts, would lead
him to reasonably conclude that a particular person actually is, has been, or soon
will be engaged in criminal activity. Id. at 727-28. Here, officers received a radio
dispatch report of a potentially stolen car traveling southbound on I-45. After
parking on the shoulder of I-45, officers spotted a car driven by appellant matching
the description of the stolen car, including the license plate number. Accordingly,
the State presented evidence of specific, articulable facts that would lead officers to
believe that appellant was driving a stolen car. Thus, the officers were entitled to
stop appellant and conduct an investigatory detention to determine whether he had
stolen the car. See id.

      For these reasons, we hold a rational factfinder could have found appellant
intended to flee from a person appellant knew was a peace officer attempting to
lawfully arrest or detain him. We overrule appellant’s first issue.

                                          8
      II.    Lesser Included Offenses

      In his second and third issues, appellant complains that the trial court erred
in refusing to submit to the jury instructions on the lesser included offenses of
evading arrest or detention on foot and attempted evading arrest or detention in a
vehicle. To determine whether a lesser included offense instruction should have
been given, we analyze whether the elements of the lesser included offense are
included within the proof necessary to establish the elements of the charged
offense and whether there is evidence in the record that could allow a jury to find
the defendant guilty of only the lesser included offense. See State v. Meru, 414
S.W.3d 159, 161 (Tex. Crim. App. 2013). Under the second prong, the defendant is
entitled to an instruction on the lesser included offense when some evidence in the
record would permit a jury rationally to find that if the defendant is guilty, he is
guilty only of the lesser included offense. Hall v. State, 225 S.W.3d 524, 536 (Tex.
Crim. App. 2007). Although anything more than a scintilla of evidence may be
sufficient to entitle a defendant to a lesser included offense instruction, the
evidence must establish the lesser included offense as a valid, rational alternative
to the charged offense. Id. It is not enough that the jury may disbelieve crucial
evidence pertaining to the greater offense. Skinner v. State, 956 S.W.2d 532, 543
(Tex. Crim. App. 1997). Rather, there must be some evidence directly germane to
a lesser included offense for the factfinder to consider before an instruction on a
lesser included offense is warranted. Id.

      No Evidence of Only Evading on Foot. Appellant argues that there is some
evidence that he was looking for a safe place to park the car and decided to evade
on foot only after he stopped. We disagree. Appellant pulled into the left lane of a
major freeway with moderate to heavy traffic, slowed down, and jumped out of the
window of a moving car. He subsequently ran across several lanes of oncoming

                                            9
traffic and slid down an embankment. These are not the actions of someone who
decided to flee only after stopping a car—he did not even stop the car. Further, as
discussed above, appellant’s erratic driving and evasive maneuvers are not
consistent with the idea that he was searching for a safe place to stop. Appellant
does not identify any facts showing that he decided to flee only after he stopped
driving. We conclude there is no evidence that would permit a rational jury to find
that if appellant is guilty, he is guilty only of the lesser included offense.6 See
Jimenez v. State, 419 S.W.3d 706, 713 (Tex. App.—Houston [1st Dist.] 2013, pet.
ref’d) (holding appellant failed to adduce facts from which elements of lesser
included offense could be deduced). Accordingly, the trial court did not err in
failing to submit a jury instruction for the offense of evading on foot.

       No Evidence of Attempted Evasion. Appellant also argues he was entitled
to a lesser included offense instruction on attempted evasion, apparently because
he eventually surrendered when he injured his ankle and could no longer run.7 See
Tex. Pen. Code § 15.01(a) (defining criminal attempt) (“A person commits an
offense if, with specific intent to commit an offense, he does an act amounting to
more than mere preparation that tends but fails to effect the commission of the
offense intended.”). Delayed compliance with an officer’s direction to stop can be
found to be an attempt to evade arrest or detention. Horne, 228 S.W.3d at 446. The
evidence in this case, however, does not show that appellant merely delayed in
       6
         We further note that abandoning one’s vehicle during a police chase and continuing on
foot is a continuation of evading in a vehicle. See, e.g., Hobbs v. State, 175 S.W.3d 777, 779
(Tex. Crim. App. 2005) (“Section 38.04(b)(1), which elevates the punishment level for the
offense defined in Section 38.04(a) when a vehicle is used, requires only that a vehicle be used at
some time during the commission of this offense.”).
       7
         Appellant might be arguing instead that his crime was a mere attempt because he
eventually was caught. His brief is not clear on this point. However, being caught does not
reduce the offense to an attempt because evading arrest or detention is a continuing offense from
the beginning of pursuit until either apprehension or the police give up the pursuit. See Hobbs,
175 S.W.3d at 779-80.

                                                10
complying with the officers’ efforts to stop him. An officer testified that when
appellant got to the bottom of the embankment “he hurt his ankle and couldn’t run
no [sic] more, so he staggered up to me and my partner [and we] took him into
custody . . . .” Accordingly, appellant was forced by his injury to stop fleeing. We
conclude on these facts that there is no evidence that would permit a rational jury
to find that appellant merely delayed in complying with officers’ efforts to stop
him. Cf. id. (holding when appellant signaled officer to follow him to his mother’s
house because he did not want his car to be towed, appellant “was attempting to
evade arrest, even if only for the few minutes it took for him to park his car in front
of his mother’s house”).

      We conclude the trial court did not err in refusing to submit lesser included
offense instructions to the jury on evading on foot or attempted evading. We
overrule appellant’s second and third issues.

      III.    Jury Argument

      In his fourth issue, appellant argues that the trial court abused its discretion
in overruling his objection to the prosecutor’s statement during closing argument
as follows:

      Now, defense counsel brought up some issues with the police officers
      bringing up new evidence and new testimony yesterday. What he’s
      forgetting to tell you, we, the State, we have subpoena power to
      subpoena witnesses and we do. That’s why we’re here. That’s why
      we’re brought here.

      He also has subpoena power. He also can talk to them before they
      come to trial.
Appellant’s counsel objected to this statement on the basis that the prosecutor was
“going clearly outside the record.” The trial court overruled the objection on the
basis that appellant’s counsel invited the argument.

                                          11
       We review the trial court’s ruling on an objection to jury argument for abuse
of discretion. Nzewi v. State, 359 S.W.3d 829, 841 (Tex. App.—Houston [14th
Dist.] 2012, pet. ref’d). We analyze the closing argument in light of the entire
record and not upon the argument’s isolated occurrence. DeLarue v. State, 102
S.W.3d 388, 405 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d). Proper
closing arguments (1) summarize the evidence; (2) make reasonable deductions
from the evidence; (3) respond to arguments of opposing counsel; or (4) plead for
law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000).
Even when an argument exceeds the permissible bounds of these approved areas, it
will not constitute reversible error unless, in light of the record as a whole, the
argument is extreme or manifestly improper, violative of a mandatory statute, or
injects new facts harmful to the accused into the trial proceeding. Id. The remarks
must have been a willful and calculated effort on the part of the State to deprive
appellant of a fair and impartial trial. Id.

       Appellant asserts that the prosecutor’s argument was improper because it
injected facts outside the record.8 We disagree. Under the invited argument rule, a
defendant cannot complain of improper prosecutorial argument if he invited the
argument. Watts v. State, 371 S.W.3d 448, 458 (Tex. App.—Houston [14th Dist.]
2012, no pet.) (citing Ripkowski v. State, 61 S.W.3d 378, 393 (Tex. Crim. App.
2001)). If the defendant’s counsel goes outside the record in his argument, the

       8
          Appellant also argues that the prosecutor injected his personal opinion of guilt into the
argument and the trial court improperly commented on the weight of the evidence in stating that
appellant’s counsel “[i]nvited argument.” Appellant did not object on these grounds at trial and
has not preserved these issues for review. See Johnson v. State, 233 S.W.3d 109, 114 (Tex.
App.—Houston [14th Dist.] 2007, no pet.) (“[F]or appellant to complain on appeal about
erroneous jury argument, . . . appellant must show that he lodged an objection during trial and
pressed that objection to an adverse ruling.”). Appellant also complains that the trial court did
not instruct the jury to disregard the statement. Because we conclude the trial court did not abuse
its discretion in overruling the objection, the trial court did not need to instruct the jury to
disregard the comment.

                                                12
prosecutor is also permitted to go outside the record to respond as long as the
response is within the scope of the invitation. Id.

      The prosecutor responded to the repeated argument by defense counsel that
he was “ambushed” and denied the opportunity to confront the officers and learn
their anticipated testimony before trial. No such evidence is in the record, so
defense counsel went outside the record when he made this argument. The
prosecutor’s response that defense counsel had the power to subpoena the officers
and thus could have talked to them before trial to ascertain their anticipated
testimony was within the scope of defense counsel’s invitation.9 Accordingly, the
trial court did not abuse its discretion in overruling appellant’s objection to the

      9
          Defense counsel repeated this argument several times, as truncated below:
            I think the police officers came down yesterday and said this isn’t
      enough. . . . There is no evidence in this police report that he was evading.
               And what happened? Miraculously, some 10 or 12 months later, when
      their memory’s not nearly as good it was on the date of the offense, they
      remembered all the evidence that would put [appellant] in a position, if it were
      true, to be evading.
              There was not one shred of evidence in the police report. We’re entitled by
      the Constitution, [appellant] and I are entitled to confront his accusers and we did
      that but we didn’t have all the evidence. We’re supposed to have all the evidence
      that they intend to present at trial. We’re supposed to have that in advance. That’s
      what’s called the rule of discovery. We’re supposed to be able to prepare a
      defense that is directly related to the evidence that they’re going to put on the
      witness stand.
               Did I have that opportunity? No. . . .
             I think you need to send a message to the police officers and tell them to
      quit cheating because that’s what they did. They cheated us out of a fair trial.
      How? Withholding evidence until they could ambush us at trial with it. . . .
             That’s trial by ambush. The police officers, they got together yesterday
      and said we’re not going to get there with this police report. And they changed it.
      They added to it. They amended. Denied me my right to confront his accusers
      with adequate preparation. . . .
              [Appellant] didn’t get the benefits of [our criminal justice system] because
      I did not get all the evidence prior to trial. I was ambushed and you know that.

                                                13
prosecutor’s comment. See Longoria v. State, 154 S.W.3d 747, 766 (Tex. App.—
Houston [14th Dist.] 2004, pet. ref’d) (holding prosecutor’s remark regarding why
appellant’s family members were brought before grand jury was “properly
responsive” to defensive argument that the family members had been brought
before the grand jury as an intimidation tactic).

      We overrule appellant’s fourth issue.

      We affirm the judgment of the trial court.




                                        /s/    Martha Hill Jamison
                                               Justice



Panel consists of Justices Jamison, McCally, and Wise.
Publish — TEX. R. APP. P. 47.2(b).




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