                                                                         PD-0291-15
                                                        COURT OF CRIMINAL APPEALS
                                                                        AUSTIN, TEXAS
                                                        Transmitted 6/1/2015 4:36:25 PM
                                                         Accepted 6/2/2015 11:17:13 AM
                                                                         ABEL ACOSTA
                                                                                 CLERK




                       No. PD–0291–15

     in the court of criminal appeals of texas


                      leroy calhoun
                         Petitioner
                              v.
                   the state of texas
                        Respondent


           On review from the Tenth Court of Appeals
                Case number 10–14–00058–CR


          petition for discretionary review


                                   Franklin Bynum
                                   Texas Bar Number 24069451
                                   2814 Hamilton Street
                                   Houston, Texas 77004
                                   (713) 343-8844
                                   fgb@lawfgb.com
                                   Counsel for Applicant
June 2, 2015
                                   Oral Argument Requested
              identity of parties and counsel

Appellant                   Leroy Calhoun
                            2701 Longmire Drive # 501
                            College Station, Texas 77840

Defense Counsel at Trial    Craig Greaves
                            118B South Main Street
                            Bryan, Texas 77803

Prosecutors at Trial        William Ward 
                            Assistant District Attorney
                            Brazos County District Attorney
                            300 East 26th Street
                            Bryan, Texas 77803

Judge Presiding at Trial    The Honorable Travis Bryan
                            272nd District Court
                            300 E 26th Street
                            Bryan, Texas 77803

Appellant’s Counsel         Clint Sare
at the Court of Appeals     PO Box 1694
                            Bryan, Texas 77803

State’s Counsel             Jessica Escue
at the Court of Appeals     Brazos County District Attorney
                            300 East 26th Street
                            Bryan, Texas 77803

Petitioner’s Counsel        Franklin Bynum
on Discretionary Review     Bynum Law Office PLLC
                            2814 Hamilton Street
                            Houston, Texas 77004




                             2
                            table of contents
identity of parties and counsel............................................. 2!

table of contents .................................................................. 3!

index of authorities .............................................................. 4!

statement regarding oral argument ..................................... 5!

statement of the case............................................................ 5!

statement of procedural history .......................................... 5!

question presented for review .............................................. 6!

  In an evading arrest case, the State must prove that the
  officer’s attempt to detain or arrest was lawful. In this
  case, there is no evidence regarding whether the initial
  attempt to detain or arrest was unlawful; the State relied
  on conduct after the initial stop—which was never shown
  to be lawful— to prove a lawful attempt to detain or arrest.
  May the State prove its case with evidence that that may
  have been the result of an unlawful attempt to detain? ..........................................6!

argument ............................................................................... 6!

prayer .................................................................................... 9!

certificate of compliance .................................................... 10!

certificate of service ........................................................... 10!

appendix a: the opinion below ............................................... 11!




                                         3
                              index of authorities

Cases!

Blount v. State, 965 S.W.2d 53, 54–55 (Tex. App.–Houston [1st Dist.]

   1998, pet. ref’d) ............................................................................... 7

Calhoun v. State, 10-14-00058-CR, 2015 WL 630622 (Tex. App.—

   Waco Feb. 12, 2015, no pet h.). ................................................. 5, 6, 7

Comer v. State, 754 S.W.2d 656 (1986) ................................................ 8

Pickens v. State, 159 S.W.3d 272 (Tex. App.–Amarillo 2005, no pet.) . 7

Rules!

Tex. R. App. P. 66.3(b) ........................................................................ 8

Constitutional Provisions!

Tex. Const. art. I, § 10......................................................................... 8

U.S. Const. amend. V .......................................................................... 8

U.S. Const. amend. XIV ...................................................................... 8




                                                  4
              statement regarding oral argument
        Counsel always enjoys an opportunity to address issues person-
ally with the Court.
                          statement of the case
        At trial in this evading arrest case, the State and the defense en-
tered into an agreement on the record to not discuss why officers ini-
tially attempted to stop Leroy Calhoun; consequently, the record has
no evidence that the initial attempted detention was lawful. The State
sought to prove the element of lawful detention by conduct that came
only after a detention that was never proven to be lawful. The court of
appeals agreed, and affirmed the conviction.
        Leroy Calhoun brings this petition for discretionary review to
challenge the court of appeals’ determination that the initial attempted
detention need not be shown to be lawful in an evading arrest case.
                statement of procedural history
        Leroy Calhoun pleaded not guilty to evading with a motor vehi-
cle on May 1, 2006 in the 272nd District Court of Brazos County.1 The
jury found Calhoun guilty, and the judge imposed a sentence of six
years in prison on January 31, 2014.2




1
  Calhoun v. State, 10-14-00058-CR, 2015 WL 630622, at *1 (Tex. App.—Waco Feb. 12, 2015, no
pet h.).
2
  Id.




                                             5
          The Tenth Court of Appeals affirmed the conviction on Febru-
ary 12, 2015.3
                  question presented for review
                In an evading arrest case, the State must
                prove that the officer’s attempt to detain or
                arrest was lawful. In this case, there is no
                evidence regarding whether the initial
                attempt to detain or arrest was unlawful; the
                State relied on conduct after the initial
                stop—which was never shown to be lawful—
                to prove a lawful attempt to detain or arrest.
                May the State prove its case with evidence
                that that may have been the result of an
                unlawful attempt to detain?

                                argument
          On the morning of trial in this case, the defense lawyer moved
for a continuance because he was unprepared to litigate the initial rea-
son the officers attempted to detain Calhoun.4 In response, the State
and the defense entered into a stipulation that they would not discuss
the reason for the initial stop.5
          The State then put on evidence that, after an initial attempted
detention that was not ever shown to be lawful, that Calhoun commit-
ted several traffic violations: “ran a four-way stop intersection, went


3
  Id. at *3.
4
  Id. at *2.
5
  Id.




                                      6
into a left turn lane, ran several more stop signs, drove into oncoming
traffic, and drove in a manner dangerous to surrounding vehicles.”6
         On appeal, Calhoun raised one issue: that the evidence was in-
sufficient because the State failed to prove that the initial attempted
detention was lawful.7
         The Tenth Court of Appeals disagreed, and found that that ini-
tial attempted detention need not be proven lawful for the evidence to
be sufficient.8 The Tenth Court cited Pickens out of Amarillo and
Blount out of the First Court in Houston to support the proposition
that the initial stop need not be proven to be lawful if there are lawful
reasons for the attempted detention that occur after the initial at-
tempted detention.9 The Court below cited its own concurring author-
ity, and noted
                  every appellate court that has addressed this
                  issue has held that the offenses committed
                  while a defendant is attempting to evade an
                  officer's detention provides a lawful basis to
                  detain the defendant—even if the officer did
                  not have a lawful reason for the detention at
                  the time the officer attempted to detain the
                  defendant initially.10



6
  Id. at *1.
7
  Id.
8
  Id. at *3.
9
  Pickens v. State, 159 S.W.3d 272 (Tex. App.–Amarillo 2005, no pet.); Blount v. State, 965 S.W.2d
53, 54–55 (Tex. App.–Houston [1st Dist.] 1998, pet. ref’d).
10
   Calhoun, 2015 WL 630622 at *3.




                                                7
         This should not be so. The decision below and the authority it
relies upon should be overruled; this is an important question of state
law that has not been but should be resolved by this Court.11 It is a vio-
lation of Due Process and Due Course of Law for the police to be able
to unlawfully attempt initiate a traffic stop, then use a citizen’s re-
sponse to the unlawful attempted stop to then convict that citizen of a
felony.12
         This idea of Due Process and fundamental fairness pervades
other areas of criminal law. For example, evidence—even contra-
band—that was abandoned as a result of an unlawful stop is consid-
ered to be involuntarily abandoned, and may not be used.13 The aban-
donment must be voluntary, and not “merely the result of police un-
lawfulness.”14 Even though Comer is a suppression case, the principle
is the same: acts that are coerced through unlawful police action
should be considered involuntary and not considered to determine the
lawfulness of a stop.




11
   Tex. R. App. P. 66.3(b).
12
   U.S. Const. amend. V, XIV; Tex. Const. art. I, § 10.
13
   Comer v. State, 754 S.W.2d 656, 658 (1986).
14
   Id.




                                                8
                             prayer
      Leroy Calhoun prays that the Court grant his petition and set a
briefing schedule.
                                     Respectfully,
                                     /s/ Franklin Bynum
                                     Franklin Bynum
                                     Texas Bar Number 24069451
                                     2814 Hamilton Street
                                     Houston, Texas 77004
                                     (713) 343-8844
                                     fgb@lawfgb.com




                                 9
                  certificate of compliance
      The word-processing software used to produce this brief reports
its length as 1,182 words.
                                        /s/ Franklin Bynum
                                        Franklin Bynum

                     certificate of service
      I delivered a copy of this petition to the Brazos County District
Attorney and to the State Prosecuting Attorney, both by electronic
service at the time of filing on May 30, 2015, and then again on sub-
mission of a corrected filing on June 1, 2015.

                                        /s/ Franklin Bynum
                                        Franklin Bynum




                                   10
appendix a: the opinion below




             11
                                                   2015 WL 630622
                                     Only the Westlaw citation is currently available.

                   SEE TX R RAP RULE 47.2 FOR DESIGNATION AND SIGNING OF OPINIONS.

                                                MEMORANDUM OPINION
                                                    DO NOT PUBLISH
                                                 Court of Appeals of Texas,
                                                           Waco.

                                               Leroy Calhoun, Jr., Appellant
                                                             v.
                                                The State of Texas, Appellee

                        No. 10–14–00058–CR | Opinion delivered and filed February 12, 2015


From the 272nd District Court, Brazos County, Texas, Trial Court No. 12–03318–CRF–272, Travis B. Bryan, III,
Judge

Attorneys and Law Firms

Clint F. Sare, Attorney at Law, Bryan, TX, for Appellant/Relator.

Javis J. Parsons, District Attorney, Jessica Escue, Assistant District Attorney, Bryan, TX, for Appellees/Respondents.

Before Chief Justice Gray, Justice Davis, and Justice Scoggins.




                                                MEMORANDUM OPINION


REX D. DAVIS, Justice

*1 Asserting one issue, Leroy Calhoun challenges the sufficiency of the evidence supporting his conviction for second-degree
felony evading arrest or detention with a vehicle. Calhoun moved for a directed verdict based on the State’s alleged failure to
show the officer’s authority to detain Calhoun. The trial court denied the motion, the jury found Calhoun guilty, and the trial
court assessed a six-year sentence. We will affirm.

Specifically, Calhoun contends that the trial court erred in denying his motion for directed verdict, which is a challenge to the
sufficiency of the evidence to support the conviction. See Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). 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 offense of evading arrest requires the State to prove that the defendant intentionally fled from a person he knew was a
peace officer attempting to lawfully arrest or detain him. TEX. PENAL CODE ANN. § 38.04(a) (West Supp. 2014).
Calhoun’s sufficiency argument is that the evidence was insufficient to show the officer’s authority to detain Calhoun before
Calhoun fled.

Officer Tim Davis, who was a deputy with the Burleson County Sheriff’s Department on May 17, 2012, testified that he was
on patrol in a marked sheriff’s patrol vehicle when dispatch advised to be on the lookout for a tan-colored Buick. Soon after
the dispatch, Davis spotted the vehicle, but he waited for backup to arrive before he attempted to pull over the vehicle. When
DPS Trooper John Anderson arrived, Davis activated his overhead lights to attempt to stop the suspect vehicle, which then
sped away at a very high rate of speed. While attempting to get away, the suspect vehicle ran a four-way stop intersection,
went into a left turn lane, ran several more stop signs, drove into oncoming traffic, and drove in a manner dangerous to
surrounding vehicles.

Davis said that the suspect vehicle then turned into an apartment complex and continued to drive at a high rate of speed and
in a dangerous manner. The suspect vehicle left the apartment complex and continued to drive in a dangerous manner,
including driving in the wrong lane and at a high rate of speed. The suspect vehicle wrecked while trying to turn, and
Calhoun, the driver, fled on foot, but Anderson caught him.

*2 Anderson testified that he was called to provide backup to Davis to help him stop a suspect vehicle. He confirmed that the
suspect vehicle refused to stop for law enforcement and that Calhoun fled on foot after wrecking. Anderson chased him and
yelled for him to stop, but Calhoun continued to run until Anderson threatened to use his Taser.

Calhoun’s sufficiency complaint is that, other than Davis’s “be on the lookout” testimony, the State did not adduce evidence
of the basis for stopping Calhoun—that Davis was attempting lawfully to arrest or detain him. Calhoun argues that the case
law presented to the trial court during argument on his motion for directed verdict—case law that we and other courts have
cited—was wrongly decided and misapplied the authority that it relied on.

The State first responds that, at trial on the morning of jury selection, Calhoun filed a motion for continuance; his trial
counsel alleged that he was unprepared to try the case and that “it would set [him] up for ineffective assistance of counsel to
proceed.” After a break and discussion with the prosecutors, Calhoun’s trial counsel then stated on the record:

            Based on the State’s promise to me that as to the initial reason why the officers are looking for a
            vehicle that my client allegedly was driving, which merely would be that they were dispatched there to
            look at the described vehicle and not the reason why; then, I can proceed because I do not have to get
            the information from the complaining witness in that other case that was dropped. So, I guess we’ll be
            fine to proceed.

The State thus notes that, in accordance with its agreement, no facts of the underlying offense that justified the initial reason
to stop and detain Calhoun were presented to the

Secondly, the State supports the authority that it relied on in the trial court, including our subsequent citation of it, and
distinguishes Calhoun’s authority. In Pickens v. State, 159 S.W.3d 272 (Tex. App.–Amarillo 2005, no pet.), on a sufficiency
challenge to a conviction for evading detention, the Amarillo court stated:

            Moreover, authority holds that even if the initial attempt at detention is unlawful, the suspect may be
            stopped or arrested for criminal acts which he commits while attempting to avoid the officer. Blount v.
            State, 965 S.W.2d 53, 54–55 (Tex. App.–Houston [1st Dist.] 1998, pet. ref’d). In other words, the fact
            that an officer may not have basis to stop a suspect does not insulate the suspect from arrest for other
            crimes committed while attempting to avoid the initial detention.

Pickens, 159 S.W.3d at 274. Calhoun argues that Pickens was wrongly decided and that the Amarillo court’s reliance on
Blount was misplaced because Blount was a suppression case, not a challenge to the sufficiency of the evidence. Calhoun
argues that the authority from the Houston First court that we should look to is instead Guillory v. State, 99 S.W.3d 735 (Tex.
App.–Houston [1st Dist.] 2003, pet. ref’d). But the State distinguishes Guillory, noting that it did not hold that the lawfulness
of a defendant’s detention must be determined at the time the officers directed him to stop. There, the defendant argued that
the evidence was insufficient to find that the officers had a legal basis to stop him “because there is no way that the police
officers could have known whether or not he was actually violating a traffic law at the time they directed him to pull over.”
Id. at 740. Thus, the issue was not when the officers’ lawful basis for a stop must occur, but whether the evidence was
sufficient to show that the officers could see from their vantage point that the defendant was driving without a front license
plate. Id. at 741. Also, there was no evidence, unlike this case, that the defendant committed any other offenses during law
enforcement’s pursuit. See id. at 740–41.

*3 The State furthermore notes that the State’s factual concession in Guillory was not the holding in that case, but was just a
one-sentence recitation of that concession and the only discussion of the issue. In Guillory, the State conceded “that, unless
the officers had formed either probable cause to arrest appellant or had reasonable suspicion sufficient to detain him at the
time they directed appellant to stop, the subsequent arrest for evading arrest was invalid.” Id. at 740.

Finally, the State asserts that every appellate court that has addressed this issue has held that the offenses committed while a
defendant is attempting to evade an officer’s detention provides a lawful basis to detain the defendant—even if the officer did
not have a lawful reason for the detention at the time the officer attempted to detain the defendant initially. For example, in
2007, we stated:

  Moreover, “even if the initial attempt at detention is unlawful, the suspect may be stopped or arrested for criminal acts
  which he commits while attempting to avoid the officer.” Pickens v. State, 159 S.W.3d 272, 274 (Tex. App.–Amarillo 2005,
  no pet.) (citing Blount v. State, 965 S.W.2d 53, 54–55 (Tex. App.–Houston [1st Dist.] 1998, pet. ref’d)); see Bell v. State,
  233 S.W.3d 583, 587–88 (Tex. App.–Waco 2007, no pet. h.). According to Kelly, Ellis, and Lee, Williams drove through
  stop signs, blew through intersections, traveled at a high rate of speed, and ran over a street sign. Lee even observed
  Williams aiming the truck at pedestrians. Even if the officers possessed no lawful reason to detain Williams prior to the car
  chase, a lawful reason arose once Williams violated the traffic laws while attempting to evade the officers. See Pickens,
  159 S.W.3d at 274; see also Bell, 233 S.W.3d at 587–88.

Williams v. State, No. 10–06–00341–CR, 2007 WL 4260479, at *4 (Tex. App.–Waco Dec. 5, 2007, pet. ref’d) (mem. op., not
designated for publication); see Almond v. State, No. 08–05–00369–CR, 2007 WL 2742320, at *3 (Tex. App.–El Paso Sept.
20, 2007, no pet.) (not designated for publication); see also Bell v. State, 233 S.W.3d 583, 587–88 (Tex.App.–Waco 2007, pet.
ref’d, untimely filed).

In conclusion, based on the above authority, we agree with the State that if a defendant commits criminal activity during an
attempt to evade law enforcement, evidence of that criminal activity alone can be sufficient to support a finding that the law
enforcement officer’s detention was lawful. And in this case, the officer’s testimony was that Calhoun committed numerous
traffic offenses while attempting to evade detention. Thus, the evidence is sufficient to support the lawfulness of the officers’
subsequent detention of Calhoun, and the trial court did not err in denying Calhoun’s motion for directed verdict.

We overrule Calhoun’s sole issue and affirm the trial court’s judgment.



  End of Document                                             © 2015 Thomson Reuters. No claim to original U.S. Government Works.
