Affirmed and Memorandum Opinion filed May 29, 2014.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-12-00429-CR
                              NO. 14-12-00432-CR

                  CHARLES ALLEN DONELLY, Appellant
                                        V.

                       THE STATE OF TEXAS, Appellee

                   On Appeal from the 435th District court
                        Montgomery County, Texas
         Trial Court Cause Nos. 11-12-13328-CR and 11-12-13327-CR

                 MEMORANDUM                      OPINION


      A jury convicted appellant, Charles Allen Donelly, of sexual assault (Appeal
No. 14-12-00429-CR, Trial Court Cause No. 11-12-13328-CR) and felony escape
(Appeal No. 14-12-00432-CR, Trial Court Cause No. 11-12-13327-CR).
Appellant pled true to seven enhancement paragraphs, the jury found the
paragraphs true and assessed his sentence at confinement for life for the offense of
sexual assault and 99 years for the offense of escape; the sentences are to run
concurrently.   Appellant brings two issues in this appeal complaining of the
sufficiency of the evidence to support his convictions.

                                 I.        BACKGROUND

       C.S. met appellant online. She was fifteen years of age and he was 47.
They met in person and appellant tried to convince C.S. to have sex with him.
About a week later they met again on the shore of Lake Conroe and had
intercourse. They decided to move to a more secluded area; C.S. drove a golf cart
and appellant followed her in his truck.

       United States Forest Service Officer Joseph McGallicher was on patrol in
the Sam Houston National Forest when he initiated a traffic stop on the golf cart
for operating an unregistered vehicle on a public roadway. Officer McGallicher
requested and received the driver’s license of the person driving the truck — it was
appellant. Officer McGallicher asked appellant if he and the female were together
and appellant said that she was showing him around the area. The driver of the
golf cart identified herself as C.S. and said she was 15 years old and did not have a
driver’s license.

       C.S. then stated that she was glad the officer had stopped her because
appellant “had made unwanted sexual advances towards her.” Officer McGallicher
ordered appellant out of his truck, placed him in handcuffs, and stated that he was
detaining him. Officer McGallicher ordered appellant to sit on the tailgate of his
truck. As Officer McGallicher walked away appellant said, “She told me she was
18.”

       C.S. appeared distraught and was shaking. She told Officer McGallicher
that appellant had come up to her on the Conroe lakefront beach and assaulted her.



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Officer McGallicher called for assistance and Montgomery County Sheriff’s
Deputy Bourne was dispatched to the location.

      Meanwhile, C.S. informed Officer McGallicher that she was experiencing
vaginal pain. Officer McGallicher contacted her mother and an ambulance was
called out due to C.S.’s statement that she was in pain. Officer McGallicher
testified that appellant’s view was not blocked from seeing the arrival of the
ambulance.

      Officer McGallicher testified that he intended for Deputy Bourne to take
appellant back to the Montgomery County Jail for questioning while he attempted
to recover a used condom from the area where C.S. alleged the sexual assault had
occurred. In the meantime, appellant’s truck was inventoried and a letter written
by C.S. was discovered. The letter expressed C.S.’s desire to lose her virginity to
appellant. Appellant had been moved to the backseat of Deputy Bourne’s patrol
car, where he remained handcuffed. After the inventory of appellant’s truck was
completed, Officer McGallicher left the scene of the traffic stop and returned to the
location C.S. alleged the assault had occurred. Deputy Bourne followed Officer
McGallicher to the location in his patrol car, with appellant still in the backseat.
C.S. took Officer McGallicher to where the alleged assault had occurred and
showed him an area of matted-down grass where she alleged they had lain down.

      Deputy Bourne was waiting in his patrol car with appellant but became
concerned when C.S. reappeared without Officer McGallicher.             Bourne and
Sergeant Ward, who was also at the scene, went looking for Officer McGallicher.
When they saw him, Deputy Bourne turned and walked back towards his car.
Deputy Bourne heard glass break and began running.           When Deputy Bourne
arrived at his patrol car, appellant was gone.



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      Officer McGallicher heard Deputy Bourne shouting.               When Officer
McGallicher approached the rear of Deputy Bourne’s patrol car, he saw the back
side window of the car was broken out and appellant was gone.                 Officer
McGallicher immediately informed Texas Ranger Doolittle of the situation and a
search was conducted. Appellant was later apprehended.

                                II.      FELONY ESCAPE

      Appellant’s first issue asserts the State failed to prove that he was lawfully
under arrest for a felony. Appellant contends the evidence only supports a finding
that he had been lawfully detained for investigation.

                                  A. Standard of Review

      When evaluating the legal sufficiency of the evidence, we view the evidence
in the light most favorable to the verdict and determine whether any rational trier
of fact could have found the essential elements of the offense beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d
560 (1979); Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005). The
standard is the same for both direct and circumstantial evidence cases. King v.
State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). We do not resolve any
conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as
this is the function of the trier of fact. See Adelman v. State, 828 S.W.2d 418, 421
(Tex. Crim. App. 1992). In conducting our review, we resolve any inconsistencies
in the evidence in favor of the verdict. Crawford v. State, 889 S.W.2d 582, 584
(Tex. App.—Houston [14th Dist.] 1994, no pet.).

                                      B. The Law of Arrest

       Under the statute in effect at the time of this offense, a person commits an
offense if he escapes from custody when he is under arrest for an offense. Act of

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June 15, 2007, 80th Leg., R.S. ch. 908, 2007 Tex. Gen. Laws 2290.1 A completed
arrest distinguishes the offense of escape from the offenses of evading or resisting
arrest. Sample v. State, 292 S.W.3d 135, 137, n. 1 (Tex.App.—Houston [14th
Dist.] 2008, pet. ref’d.) (citing Medford v. State, 13 S.W.3d 769, 773 (Tex. Crim.
App. 2000)). An arrest is complete for purposes of the escape statute (1) when a
person’s liberty of movement is successfully restricted or restrained, whether this
is achieved by an officer’s physical force or the suspect’s submission to authority;
and (2) if a reasonable person in the suspect’s position would have understood the
situation to constitute a restraint on freedom of movement of the degree which the
law associates with formal arrest. Warner v. State, 257 S.W.3d 243 (Tex. Crim.
App. App. 2008) (quoting Medford, 13 S.W.3d at 773). “Because the occurrence
of an arrest cannot be determined by any bright-line test, whether an arrest has
occurred must be determined on a case-by-case basis by examining the totality of
the circumstances.” Sample, 292 S.W.3d at 137. In addition, “what may begin as
a consensual encounter ... may evolve into an arrest.” Josey v. State, 981 S.W.2d
831, 838 (Tex.App.—Houston [14th Dist.] 1998, pet. ref’d.) (quoting Francis v.
State, 922 S.W.2d 176, 178 (Tex. Crim. App. 1996) (Baird, J., concurring and
dissenting)).

       To effectuate a full custodial arrest, an officer must have probable cause to
believe the person arrested has committed or is committing an offense.                    See
Amores v. State, 816 S.W.2d 407, 411 (Tex. Crim. App. 1991). Probable cause to
arrest exists when the facts and circumstances within the arresting officer’s
knowledge and of which he has reasonably trustworthy information are sufficient
in themselves to warrant a person of reasonable caution to believe an offense has

       1
         Effective September 1, 2011, the statute changed to include persons who escaped while
in custody when the person is “lawfully detained for” an offense. See Tex. Pen. Code §
38.06(a)(1) (West Supp. 2013).

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been or is being committed. Id. at 413. Probable cause requires more than mere
suspicion but far less evidence than that needed to support a conviction or to
support a finding by a preponderance of the evidence. See Guzman v. State, 955
S.W.2d 85, 87 (Tex. Crim. App. 1997).

                              C. Was Appellant Under Arrest?

      Officer McGallicher testified that when he placed appellant in handcuffs, he
informed appellant that he was being detained. The State concedes that appellant’s
initial detention in handcuffs does not rise to the level of arrest. However, the
State urges that by the time of the escape, a reasonable person would conclude he
was under arrest. We agree.

      We turn first to the evidence of probable cause to arrest. When Officer
McGallicher ordered appellant to sit on the truck’s tailgate, as he walked away
appellant said, “She told me she was 18.” Officer McGallicher testified that
statement from appellant, along with C.S.’s statements, gave him probable cause to
arrest appellant. According to Officer McGallicher, probable cause arose about
forty minutes after initial contact with appellant. Officer McGallicher testified that
he believed the actual arrest took place at that time. Officer McGallicher knew:
C.S. was driving a golf cart and appellant was following her; C.S. was fifteen – a
minor; appellant was forty-seven; C.S. stated that appellant had forced sex upon
her; C.S. was visibly shaking; and, unsolicited, appellant uttered the words “She
told me she was 18.” We conclude that the facts and circumstances within the
arresting officer’s knowledge, and of which he has reasonably trustworthy
information, were sufficient to warrant a person of reasonable caution to believe an
offense has been or is being committed. Amores, 816 S.W. at 413.

      We now examine whether a reasonable person in appellant’s position would
have understood that he was under arrest. Medford, 13 S.W.3d at 773. Appellant
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relies heavily upon Officer McGallicher’s repeated use of the word “detained”
instead of “arrested” on the scene prior to Appellant’s escape. Specifically, Officer
McGallicher agreed that he said appellant was detained seven times during his
investigation.      While appellant was sitting on the back of the truck, Officer
McGallicher stated to other law enforcement personnel that appellant was not
under arrest and that he was not going to Mirandize him. Two hours later, Officer
McGallicher again said appellant was not under arrest but was being detained.

        However, we do not measure appellant’s status from the officer’s point of
view.     Therefore, we note that of the times that Officer McGallicher said
“detained,” only once did he use the word “detained” when speaking to appellant.
Officer McGallicher testified that he only spoke to appellant twice, once when he
got appellant out of the truck and placed him in handcuffs, and again when he told
appellant to stay on the tailgate. At all other times Officer McGallicher used the
word “detained” it was in speaking to other people.           We decline Appellant’s
invitation to hold that Officer McGallicher’s repeated use of the word “detained” is
dispositive of what a reasonable person in appellant’s position would believe.

        Instead, applying the standard of review, we examine the totality of the
circumstances from appellant’s perspective.         We begin at appellant’s initial
detention. From appellant’s perspective at the moment of the alleged escape:

                 1. He is forty-seven years’ old;
             2. He has been stopped while driving his Nissan truck and following a
        young girl driving a golf cart;
              3. Although he has explained that the young girl, C.S., is showing him
        around the area, he is asked to step out of his truck and advised the officer is
        “detaining him there until [he] could figure out what was going on”;
                 4. He has been handcuffed, and ordered to sit on the tailgate of his
        truck;
                 5. He observes and possibly hears the conversation between Officer
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      McGallicher and C.S;
            6. Although he initially told the officer that C.S. was showing him
      around, appellant now makes the unsolicited statement, “She told me she
      was 18;”
             7. After he makes this statement and observes the officer speaking to
      C.S., he is able to observe an ambulance arrive at the scene;
             8. Other officers arrive at the scene and he is moved, still handcuffed,
      into the back of the patrol car of one of the new officers, where he remains
      for another hour;
           9. He is in a position to observe his truck being inventoried and
      towed;
             10. He is aware that C.S’s letter is in his truck.
             11. He is then driven, still in the back of the patrol car, to the scene of
      the alleged assault where he is able to observe Officer McGallicher and C.S.
      go down to the beach;
             12. He is able to see that the ambulance has also gone to the scene of
      the alleged assault;
             13. He cannot open the rear doors of the patrol car from inside.

      From these facts and the inferences therefrom, we conclude that a rational
trier of fact could have found, beyond a reasonable doubt, that a reasonable person
in appellant’s position would have understood that he was under arrest.             See
Medford, 13 S.W.3d at 773.

      Appellant argues that this case is controlled by our decision in Sample, 292
S.W.3d at 135. Appellant characterizes our Sample decision as holding that when
a defendant is placed in the back of the investigating officer’s vehicle and an
investigative detention occurs, defendant is not under arrest until he is specifically
told he is under arrest. Instead, in Sample we held that the jury could rationally
conclude appellant’s arrest was legally complete at the moment he was informed
that he was under arrest. Id. at 137. Such an unremarkable holding cannot be
construed to suggest that an arrest cannot be legally complete until and unless the
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defendant is informed that he is under arrest. See Castillo v. State, 404 S.W.3d
557, 563 (Tex. App.—Houston [1st Dist.] 2010, pet ref’d) (holding that, although
appellant was not told he was under arrest, as in Sample, the circumstances known
to appellant were sufficient to prove he was legally under arrest). As in Castillo,
appellant here was in possession of sufficient information as events unfolded
following his initial detention that a reasonable jury could conclude that he knew
the investigating officers had enough information to arrest him. Although not
dispositive, appellant’s blurting out that C.S. told him she was 18 is a significant
factor showing appellant’s state of mind.

      Considering the evidence in the light most favorable to the verdict, we hold
the evidence was legally sufficient to prove that appellant escaped from custody
while under arrest and overrule appellant’s first issue.

                                III.   SEXUAL ASSAULT

      In his second issue, appellant claims the State failed to prove his sexual
organ contacted the sexual organ of C.S. Specifically, appellant argues C.S. did
not testify that she saw appellant’s penis and there was no physical evidence
corroborating her claim. Appellant cites no authority, and we are aware of none,
that either is required for a rational fact finder to find the elements of sexual assault
beyond a reasonable doubt.

      When determining whether evidence is legally sufficient to support the
verdict, 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 fact finder 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. at 318–19). A victim’s uncorroborated
testimony may support a conviction for sexual assault if, at the time of the alleged
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offense, the victim was seventeen years of age or younger. See Tex. Code of Crim.
Proc. art. 38.07(a), (b)(1).

      At the time of the offense C.S. was fifteen.          She testified appellant
penetrated her vagina with his penis. We conclude a rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.
Appellant’s second issue is overruled.

                                 IV.       CONCLUSION

      Having overruled both of appellant’s issues, we affirm the trial court’s
judgment in each case.




                                         /s/    Sharon McCally
                                                Justice



Panel consists of Justices McCally, Busby, and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).




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