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

              No. 06-10-00113-CR
        ______________________________


     HOMER DAVID HOLLOMAN, Appellant

                          V.

         THE STATE OF TEXAS, Appellee




    On Appeal from the 5th Judicial District Court
                Cass County, Texas
          Trial Court No. 2009-F-00266




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

           Homer David Holloman was convicted by a jury of evading arrest or detention with a

vehicle. On appeal, Holloman alleges that the trial court‘s failure to include the offense of fleeing

or attempting to elude a police officer as a lesser-included offense of evading detention by use of a

motor vehicle constituted reversible error. He also argues that the trial court‘s judgment was not

supported by legally sufficient evidence.1 We affirm the trial court‘s judgment as modified.

I.         Holloman Was Not Entitled to a Lesser-Included Offense Instruction

           In his first point of error, Holloman argues that the trial court erred in overruling his

objection that fleeing or attempting to elude a police officer 2 (―fleeing‖) should have been

included in the jury charge as a lesser-included offense of evading detention by use of a motor

vehicle (―evading‖).3 The Texas Court of Criminal Appeals has spoken on this very claim in

Farrakhan v. State, where the court held that the crime of fleeing was not a lesser-included offense

1
 Holloman also complains the evidence was factually insufficient to support his conviction. We have previously
explained that in Brooks v. State, 323 S.W.3d 893, 894–95, 912–13 (Tex. Crim. App. 2010) (Cochran, J., concurring),

           a plurality of the Texas Court of Criminal Appeals abolished the factual sufficiency review
           established by Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), and its progeny. The
           plurality and the concurring judges agreed that the Jackson v. Virginia, 443 U.S. 307 (1979), legal
           sufficiency standard is the sole standard that a reviewing court should apply in determining whether
           the evidence is sufficient to support each element of a criminal offense that the State is required to
           prove beyond a reasonable doubt. Brooks, 323 S.W.3d at 894–95, 912–13. Since the Texas Court
           of Criminal Appeals has abolished factual sufficiency review, we need not address [appellant‘s]
           challenge to the factual sufficiency of the evidence.

Louis v. State, 329 S.W.3d 260, 267 n.5 (Tex. App.––Texarkana 2010, no pet.).
2
    TEX. TRANSP. CODE ANN. § 545.421 (Vernon Supp. 2010).
3
    TEX. PENAL CODE ANN. § 38.04 (Vernon Supp. 2010).

                                                             2
of evading. 247 S.W.3d 720, 724 (Tex. Crim. App. 2008); see McKithan v. State, 324 S.W.3d

582, 593 (Tex. Crim. App. 2010) (―In Farrakhan, we approved of the court of appeals‘s decision

that the ‗fleeing‘ offense was not a lesser-included offense of the charged ‗evading‘ offense even

though proof of the charged ‗evading‘ offense may also have shown the ‗fleeing‘ offense. . . .

These were not lesser-included offenses of the charged offenses . . . because the State was not

required to prove these offenses in establishing the charged offenses, even though the State‘s

evidence may have shown them.‖).

       Utilizing the reasoning employed by our sister court in Farrakhan v. State, which the

Texas Court of Criminal Appeals has upheld, we likewise conclude that Holloman was not entitled

to an instruction on fleeing since it is not a lesser-included offense of evading. 263 S.W.3d 124,

143–44 (Tex. App.—Houston [1st Dist.] 2006), aff’d, 247 S.W.3d 720 (Tex. Crim. App. 2008).

Holloman‘s first point of error is overruled.

II.    Legally Sufficient Evidence Supported the Trial Court’s Judgment

       A.      Standard of Review

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

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

arrest or detention with a vehicle beyond a reasonable doubt. Brooks, 323 S.W.3d at 912 (citing

Jackson, 443 U.S. at 319); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010,

pet. ref‘d) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). Our rigorous



                                                 3
legal sufficiency review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at

917 (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).

       Legal sufficiency of the evidence is measured by the elements of the offense as defined by

a hypothetically-correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997); see also Grotti v. State, 273 S.W.3d 273, 280 (Tex. Crim. App. 2008); Vega v. State, 267

S.W.3d 912, 916 (Tex. Crim. App. 2008). ―A person commits an offense if he intentionally flees

from a person he knows is a peace officer attempting lawfully to arrest or detain him.‖ TEX.

PENAL CODE ANN. § 38.04(a). Evading arrest or detention is a state-jail felony if ―the actor uses a

vehicle while the actor is in flight.‖ TEX. PENAL CODE ANN. § 38.04(b)(1)(B). Thus, the

hypothetically-correct jury charge required the State to prove that (1) Holloman; (2) intentionally

or knowingly; (3) fled from a person he knew was a peace officer; (4) who was attempting to

lawfully detain or arrest him.

       B.      The Sufficient Evidence

       Uniformed officers Eric White and Shane Lawrence were travelling in a marked patrol car

when they passed Holloman‘s Dodge Diplomat on the road. White noticed Holloman was not



                                                4
wearing his seat belt, and his license plate and registration were expired. Lawrence testified that

White ―reached down and turned his lights on and as soon as he turned his lights on I told him, I

said, Corporal, I believe he‘s trying to run. [Holloman] accelerated. You could hear his motor,

the acceleration in the motor as he took off.‖ White testified the patrol car lights were on and

sirens were blaring.

         Holloman drove at a ―high rate of speed,‖ leading White, Lawrence, and other officers who

had joined the pursuit on a lengthy chase. During the attempted flight, Holloman disregarded at

least seven stop signs. At one point, White testified Holloman ―ran [a] stop sign . . . and went

across the highway into the ditch and narrowly missed a westbound car.‖ Then, Holloman took

―the car off into a pasture.‖ ―[H]e throwed [sic] the tread off of his right front tire.‖ After

Holloman travelled ―off-road[,] he jump[ed] out of the car and start[ed] running.‖ ―[H]e fled on

foot up the hill and toward the wood line.‖ Lawrence exited the patrol car driven by White and

followed Holloman on foot. Joining the pursuit, Officer Richard Lewis ―drove [his] patrol car up

the hill and got out and held him at gunpoint until Trooper Lawrence could get up there and place

him in handcuffs.‖4

         Viewing all the evidence in the light most favorable to the verdict, we find that a rational

jury could have found, beyond a reasonable doubt, that Holloman intentionally or knowingly fled


4
 Holloman argues ―that a rational jury could not convict Defendant of such offense for the reason that Officers White
and Lawrence were unable to identify Appellant as the operator of the Dodge Diplomat.‖ This argument is without
merit. Lawrence, White, and Lewis all testified Holloman was the driver of the vehicle, and there was testimony that
no other people were in the vehicle or exited the vehicle.

                                                         5
from police officers who were attempting to lawfully detain or arrest him. Accordingly, we

conclude the evidence was legally sufficient to support the trial court‘s judgment. Holloman‘s

last point of error is overruled.

III.    Judgment is Reformed to Reflect Holloman’s Plea of Not Guilty

        The Texas Rules of Appellate Procedure give this Court authority to reform judgments and

correct typographical errors to make the record speak the truth. TEX. R. APP. P. 43.2; French v.

State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Rhoten v. State, 299 S.W.3d 349, 356 (Tex.

App.—Texarkana 2009, no pet.). ―Our authority to reform incorrect judgments is not dependent

on the request of any party, nor does it turn on a question of whether a party has or has not objected

in trial court; we may act sua sponte and may have a duty to do so.‖ Rhoten, 299 S.W.3d at 356

(citing Asberry v. State, 813 S.W.2d 526, 531 (Tex. App.—Dallas 1991, writ ref‘d). The

judgment in this case reflects that Holloman pled guilty to the offense. This was incorrect. We

modify the judgment to reflect Holloman‘s plea of ―[n]ot guilty.‖

IV.     CONCLUSION

        As modified, we affirm the judgment.




                                               Bailey C. Moseley
                                               Justice

Date Submitted:         March 17, 2011
Date Decided:           March 18, 2011


                                                  6
Do Not Publish




                 7
