                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-11-00218-CR
        ______________________________


       JEREMY CALIN DUVALL, Appellant

                          V.

         THE STATE OF TEXAS, Appellee




   On Appeal from the 124th Judicial District Court
                Gregg County, Texas
              Trial Court No. 40041-B




     Before Morriss, C.J., Carter and Moseley, JJ.
             Opinion by Justice Carter
                                                    OPINION

            In the early morning hours of July 28, 2010, Jeremy Calin Duvall was driving his car

southbound on Gilmer Road in Longview, Gregg County, Texas. Officer Jacob Zimmerman was

driving northbound and passed Duvall.                 Because Duvall was speeding, Zimmerman turned

around to pursue Duvall, but did not turn on his emergency lights or siren. Due to Duvall’s speed,

Zimmerman was unable to catch him. Duvall’s vehicle left the roadway and crashed into a tree

and a residence. Duvall was not at the scene, but was later arrested and charged with evading

arrest in a vehicle.          After a jury trial, he was found guilty and sentenced to four years’

imprisonment.

            On appeal, Duvall contends that the jury erred in convicting him because there is legally

insufficient evidence that he knew the officers were attempting to detain him. We reverse the

judgment of conviction and render a judgment of acquittal.

I.          Factual Background

            On the night of July 28, 2010, Duvall invited and transported three people, Billy Hall,

Alanna McKinney, and Brianna Leatch to his home. There is testimony that even though the girls

were under twenty-one years of age, Duvall served them alcohol and, according to Leatch and

McKinney, Duvall was also drinking.1

            In the early morning hours, Duvall and McKinney left in Duvall’s Mustang. At about

4:00 a.m., Duvall was driving in the soutbound lane of Gilmer Road in Longview, Texas. Officer
1
    Hall and Duvall denied that Duvall had been drinking, and Duvall denied serving alcohol.

                                                           2
Zimmerman was traveling northbound on Gilmer Road, and he clocked Duvall at fifty-one miles

per hour in the forty mile-per-hour zone. Zimmerman turned around to pursue Duvall, but did not

turn on his overhead lights because the Mustang “had already put a great deal of distance between

[the] patrol car and it” and Zimmerman wanted to catch up to it before turning the lights on.

McKinney testified that when Duvall saw the police car, Duvall “sped up even more.”

Zimmerman tried to catch up to Duvall, but “was unable to overtake the vehicle,” and therefore

never turned on his overhead lights. He saw Duvall turn right onto Helane Street and then saw the

taillights fishtailing just before he lost sight of Duvall.

        Duvall’s car had skidded off the road, hit a tree, and landed against a residence.

McKinney testified that she remembered seeing the police car, but she blacked out prior to the

accident. Just after the accident, she awoke and Duvall told her to run. As Zimmerman came

upon the accident scene, he found McKinney running into the street. Having run away, Duvall

was not at the scene. He was later arrested and charged with evading arrest in a vehicle. He pled

not guilty. Duvall testified in his own defense, claiming that his car had been stolen that night,

and therefore there was no way he could have been driving it at the time of the incident. After a

jury trial, he was found guilty and sentenced to four years’ imprisonment and fined $4,000.00.




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II.    Sufficiency of the Evidence that Duvall Knew Zimmerman Was Attempting to
       Detain Him

       In his sole point of error, Duvall contends that the jury erred in convicting him because

there is legally insufficient evidence he knew the officer was attempting to arrest or detain him.

       In evaluating legal sufficiency, we review all the evidence in the light most favorable to the

jury’s verdict to determine whether any rational jury could have found the essential elements of the

charged offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.

App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d

859, 863 (Tex. App.—Texarkana 2010, pet. ref’d). Our rigorous legal sufficiency review focuses

on the quality of the evidence presented.          Brooks, 323 S.W.3d at 917–18 (Cochran, J.,

concurring). We examine legal sufficiency under the direction of the Brooks opinion, while

giving deference to the responsibility of the jury “to fairly resolve conflicts in testimony, to weigh

the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper v.

State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19); Clayton v.

State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

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

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,


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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). Here, the issue is whether there

is sufficient evidence from which the jury could reasonably infer beyond a reasonable doubt that

Duvall knew the officer was trying to arrest or detain him.

       The facts in Redwine v. State are very similar to the present case. Dale Redwine was

driving on a county road and he met a police car going the opposite direction. 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, Hudson and Shoemaker, 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 argued 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 State conceded that

the officers did not activate their overhead lights and that there was no show of authority until after



                                                  5
he had left his truck,2 but the State contended that the jury could infer Redwine’s knowledge of

police pursuit from Redwine’s statement that he turned off the main road “to avoid contact” with

the officers he had passed earlier.

         The court of appeals noted that Redwine’s statement that he was trying to avoid contact

with the police was not evidence that he was trying to evade arrest. “The gravamen of the offense

is the evasion of an arrest, not the evasion of a police officer.” Jackson v. State, 718 S.W.2d 724,

726 (Tex. Crim. App. 1986) (citation omitted). The court then focused on whether there was

evidence that the police showed some “authority” while Redwine was in the car.

           The court likened the testimony regarding the show of authority to the evidentiary

sufficiency standards for identification testimony. In that context, courts have consistently held

that an uncertain in-court identification of an accused as the perpetrator of a crime, standing alone,

is insufficient to support a guilty verdict. Officer Shoemaker’s hesitant and admittedly unsure

testimony was the only evidence suggesting that Redwine, while in his vehicle, failed to yield to a

possible show of authority by law enforcement. The court noted that in the absence of other

evidence, the jury could not translate Shoemaker’s uncertainty into belief beyond a reasonable

doubt. Redwine, 305 S.W.3d at 368. Based on that reasoning, the court of appeals reversed the


2
 In Redwine, one officer gave equivocal and uncertain testimony that he turned the lights on as the police car turned
onto the dirt driveway. The other officer testified that they chose not to activate the lights because they hoped to
conceal their intent to detain Redwine. Redwine, 305 S.W.3d at 365. He said, “[W]e never had a chance to get up on
[appellant] to activate our lights.” Id. In opening, the State plainly stated that the officers were not close enough to
turn on their lights, and in closing, the State repeated the concession, “And the only reason those lights were never hit
was because he had gotten so far ahead of them and almost escaped them.” Id.

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judgment and rendered an acquittal because “no rational trier of fact could have found appellant

guilty beyond a reasonable doubt of evading arrest using a vehicle . . . .” Id.

           Here, Duvall contends that he, like Redwine, was attempting to avoid contact with the

officer.3 The State argues that Redwine is distinguishable because there was no indication that

Redwine saw the officers slow, stop, or turn around to follow him, whereas in this case, the

passenger testified Duvall sped up when he saw Zimmerman’s vehicle. The State argues that

there is evidence Duvall saw the police officer’s brake lights. That evidence from the passenger

consisted of answering, “Yes” to the State’s question, “You said he saw the officer, and when he

saw him, when he saw the officer apply brakes, he sped away; is that right?” The State also points

out that Duvall was speeding and there were no other cars on the road at that time.

           For a conviction of evading arrest or detention, “it is essential that the defendant knows the

peace officer [is] attempting to arrest him.” Jackson, 718 S.W.2d at 726; see also Griego v. State,

345 S.W.3d 742 (Tex. App.—Amarillo 2011, no pet.) (officers, with activated overhead lights and

sirens, passed defendant driving the opposite direction, but insufficient evidence he knew show of

authority directed at him even though he accelerated and turned onto side street on passing

officers).

           The intent of this statute is to deter flight from arrest or detention by the threat of an

additional penalty, thus discouraging forceful conflicts between the police and suspects. Alejos v.

State, 555 S.W.2d 444, 449 (Tex. Crim. App. 1977).                          It supports an important public
3
    At oral argument, Duvall admitted to both having a motivation to avoid Zimmerman and to being guilty of fleeing.

                                                           7
policy––encouraging suspects to yield to a show of authority by law enforcement. Redwine, 305

S.W.3d at 362. Proof that an officer in a vehicle is attempting to arrest or detain a person

generally consists of the officer displaying authority by the use of overhead/emergency lights and

siren. While use of lights and sirens is not the only method for a peace officer to assert the

authority of law (pointing to a driver to pull the vehicle over, verbal commands are others), in this

instance, there is no evidence or any type of display of authority by the police officer. It is

undisputed that Zimmerman did not turn on his overhead lights, activate his siren, or make any

show of authority or other indication that he was attempting to detain Duvall. It is also undisputed

that Duvall was speeding at the time he met Zimmerman and that he sped up even more upon

seeing him. McKinney testified that she and Duvall saw Zimmerman’s brake lights, but did not

see him turn around. Even if this testimony is construed that Duvall saw the officer’s brake lights,

that does not supply evidence of a display of authority by the officer or that Duvall knew the

officer was not only braking, but intended to turn around, pursue him, and attempt to arrest or

detain him. Necessarily, since there was no action taken by the police officer to demonstrate his

authority, there is no evidence that Duvall refused to yield to a display or showing of police

authority.

       Even viewing the facts of this case in the light most favorable to the jury’s verdict, we find

legally insufficient evidence from which a jury could reasonably infer, beyond a reasonable doubt,




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that Duvall knew Zimmerman was attempting to detain him. Accordingly, we sustain Duvall’s

point of error, reverse the judgment, and render a judgment of acquittal.




                                             Jack Carter
                                             Justice

Date Submitted:       April 19, 2012
Date Decided:         May 2, 2012

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