                                                                                        ACCEPTED
                                                                                    03-14-00353-CR
                                                                                            6696450
                                                                         THIRD COURT OF APPEALS
                                                                                    AUSTIN, TEXAS
                                                                              8/28/2015 10:46:31 AM
                                                                                  JEFFREY D. KYLE
                                                                                             CLERK
                           NO. 03-14-00353-CR
     IN THE COURT OF APPEALS FOR THE THIRD APPELLATE
                                                FILED IN
                                                            3rd COURT OF APPEALS
                    JUDICIAL DISTRICT OF TEXAS                   AUSTIN, TEXAS
                                                            8/28/2015 10:46:31 AM
                             AUSTIN, TEXAS                      JEFFREY D. KYLE
                                                                     Clerk
_________________________________________________________________

                  KELLY KITA SHEFFIELD, Appellant

                                    V.

                  THE STATE OF TEXAS, Appellee
__________________________________________________________________

ON APPEAL FROM THE 22ND JUDICIAL DISTRICT COURT OF COMAL
                     COUNTY, TEXAS

                   Trial Court Cause No. CR2011-475
               The Honorable Bruce Boyer, Judge Presiding


                      BRIEF FOR THE APPELLEE
                                                         Jennifer A. Tharp
                                                  Criminal District Attorney

                                                                           By
                                                         Laura Burton Bates
                                                             SBN: 24035014
                                         Assistant Criminal District Attorney
                                            150 N. Seguin Avenue, Suite #307
                                                              (830) 221-1300
                                                          Fax (830) 608-2008
                                                 New Braunfels, Texas 78130
                                                LKBTEXAS@GMAIL.COM
                                                       Attorney for the State


Oral argument is waived unless requested by the Appellant

                                     i
           NAMES OF ALL PARTIES
          Appellant – Kelly Kita Sheffield
           Appellee – The State of Texas

           Attorneys for the Appellant
               Mr. Joseph Garcia
             200 N. Seguin Avenue
           New Braunfels, Texas 78130
             At Trial and on Appeal


           Attorneys for the Appellee
               Mr. Clayton Hearrell
        Assistant Criminal District Attorney
                 Mr. Ryan Vickers
        Assistant Criminal District Attorney
COMAL COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE
         150 N. Seguin Avenue, Suite 307
           New Braunfels, Texas 78130
               For the State at Trial

              Ms. Laura Burton Bates
        Assistant Criminal District Attorney
COMAL COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE
         150 N. Seguin Avenue, Suite 307
           New Braunfels, Texas 78130
              For the State on Appeal

              Ms. Jennifer A. Tharp
            Criminal District Attorney
COMAL COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE
         150 N. Seguin Avenue, Suite 307
           New Braunfels, Texas 78130




                         ii
                                     INDEX

                                                         Page

I.     NAMES OF ALL PARTIES                                 ii

II.    INDEX                                               iii

III.   LIST OF AUTHORITIES                                  v

IV.    NATURE OF THE CASE                                   1

V.     STATEMENT OF FACTS                                   3

VI.    SUMMARY OF THE ARGUMENT                              7

VII. COUNTERPOINTS                                          8

       COUNTERPOINT NO. 1                                   8
       State’s Reply to Appellants’ Point of Error One

           THE EVIDENCE PRESENTED AT TRIAL PERTAINING
       TO THE APPELLANT’S KNOWLEDGE THAT SERGEANT
       CANTU WAS A LAW ENFORCEMENT OFFICER WAS
       LEGALLY SUFFICIENT TO SUSTAIN THE JURY’S VERDICT
       AS TO THE EVADING ARREST OR DETENTION WITH A
       VEHICLE.
       ACCORDINGLY, APPELLANTS’ ISSUE PRESENTED SHOULD
       BE OVERRULED AND THE JUDGMENT AFFIRMED.


       COUNTERPOINT NO. 2                                  17
       State’s Reply to Appellant’s Point of Error Two

            THE EVIDENCE PRESENTED AT TRIAL PERTAINING
       TO THE CHILD ENDANGERING CHARGE WAS LEGALLY
       SUFFICIENT TO SUSTAIN THE JURY’S CONVICTION FOR
       SUCH CHARGE CONSIDERING APPELLANT PURPOSELY
       PLACED HER TEN MONTH OLD BABY IN HER VEHICLE
       WHILE SHE EVADED ARREST OR DETENTION.
                                         iii
      ACCORDINGLY, APPELLANTS’ ISSUE PRESENTED   IS
      WITHOUT MERIT AND SHOULD BE DENIED.



VIII. CONCLUSION AND PRAYER                      22

IX.   CERTIFICATE OF SERVICE                     23

X.    CERTIFICATE OF COMPLIANCE                  23




                               iv
                         LIST OF AUTHORITIES

CASE NAME                                                        PAGE

Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992)…………….12

Bowden v. State, 628 S.W.2d 782, 784 (Tex.Crim.App. 1982)………………9

Bradden v. State, WL 2830865, (Tex.App.—Waco, 2004 no pet.)
     (memo. op. not designated for publication)…………………………...11

Brooks v. State, 323 S.W.3d 893, 899 (Tex.Crim.App. 2010)…………….9,17

Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007)………………10

Contreras v. State, 54 S.W.3d 898-905 (Tex.App.—Corpus Christi
      2001, no pet)…………………………………………………………...18

Devine v. State, 786 S.W.2d 268, 270 (Tex.Crim.App. 1989)……………….18

Griffin v. State, 701 S.W.2d 958, 959 (Tex.App.—Ft. Worth
       1986, no pet.)…………………………………………………………...11

Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App, 2004)………………...10

Hernandez v. State, 538 S.W.2d 127 (Tex.Crim.App. 1976)………………….9

Hobbs v. State, 175 S.W.3d 777 (Tex.Crim.App. 2005)……………………..10

Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007)…………………9,18

Jackson v. Virginia, 443 US 307, 319, 98 S.Ct. 2781,
      61 L.Ed.2d 590 (1979)………………………………………………9,17

Laster v. State, 275 S.W.3d 512, 522 (Tex.Crim.App. 2009)……………....9,17

Lafoon v. State, 543 S.W. 2d 617 (Tex.Crim.App. 1976)……………………..9

Lide v. State, WL 2505631, (Tex.App.—Eastland, 2007 no pet.)
      (memo. op. not designated for publication)…………………..................11

                                      v
Manrique v. State, 994 S.W.2d 640, 649 (Tex.Crim.App. 1999)(en banc)…...10

Mayfield v. State, 219 S.W.3d 538, 541 (Tex.App.—Texarkana
     2007, no pet.)…………………………………………………………...10

Millslagle v. State, 81 S.W.3d 895, 898 (Tex.App.—Austin
      2002, pet. ref'd)……………………………………………………...18,20

Moreno v. State, No. 07-01-0441-CR, 2003 WL 21516575
     (Tex.App.—Amarillo 2003, no pet.)…………………………………..20

Nixon v. State, 572 S.W.2d 699 (Tex.Crim.App. 1978)…………………….…9

Redwine v. State, 3005 S.W.3d 360 (Tex.App. Houston
     [14th Dist.] 2010, pet. ref'd)………………………………………….14,15

Rollerson v. State, 277 S.W.3d 718, 724 (Tex.Crim.App. 2007)……………...12

Wesbrook v. State, 29 S.W. 3d 103, 111(Tex.Crim.App. 2002)………………10



RULES AND STATUTES                                                  PAGE

TEX.PEN.CODE ANN. §22.04…………………………………………………1,18

TEX.PEN.CODE ANN. §37.09 (a)…………………………………………………1

TEX.PEN.CODE ANN. §38.04 ……………………………………..…………..1,10




                                      vi
                          Cause No. 03-14-00353-CR


KELLY KITA SHEFFIELD       §IN THE COURT OF APPEALS
                           §
                 Appellant §
                           §
                           §
    v.                     § FOR THE THIRD
                           §
                           §
THE STATE OF TEXAS         §
                 Appellee §APPELLATE DISTRICT OF TEXAS

       ON APPEAL FROM THE 22ND JUDICIAL DISTRICT COURT
                  OF COMAL COUNTY, TEXAS
                 Trial Court Cause No. CR2011-475

To the Honorable Court of Appeals:

                           NATURE OF THE CASE

      Appellant was charged by indictment with one (1) count of tampering with

physical evidence, a third degree felony, one (1) count of evading arrest or

detention with a vehicle, a state jail felony, and one (1) count of endangering a

child, also a state jail felony, all alleged to have been committed on March 17,

2011. TEX.PEN.CODE ANN. §§37.09(a), 38.04, 22.04. (C.R. pp.5). Trial before a

jury commenced on March 3, 2014, the Honorable Bruce Boyer, Judge presiding.

Ultimately, on March 5, 2014, the Appellant was found guilty by the jury of

evading arrest with a vehicle and endangering a child; she was acquitted on the

count of tampering with physical evidence. (R.R. Vol. 4, pp. 128). The Appellant


                                        1
elected the trial court to assess punishment, which was reset following the

pronouncement of the verdict, so that a presentence investigation may be

completed prior to formal sentencing. Id at 131.

      After hearing further evidence from both sides during the punishment phase

on May 22, 2014, the court ultimately sentenced Appellant to two years’

incarceration in the State Jail Division of the Texas Department of Corrections,

suspended and probated for a period of five years, and also imposed a $1,500 fine;

this sentence was ordered on each count and will run consecutively. (RR. Vol. 5,

pp. 61-2).




                                        2
                           STATEMENT OF FACTS

      On March 13, 2011, Child Protective Services (CPS) investigator Gina

Bushey received a “referral” regarding Appellant, meaning CPS was notified of

“allegations concerning drug use by the parents, domestic violence, mental

instability, and threats of harm to self and the child,” specifically concerning

Appellant and her two young children. (R.R. Vol. 3, pp. 15). Bushey met

personally with Appellant concerning these allegations, found them to be

substantiated, and received a court order to remove Appellant’s two children due to

these concerns. Id at 16.The older child was living with her father, but the younger

child, “L.S.,” was still residing with Appellant and her husband at an apartment

complex in Comal County. Id at 17.

      On March 17, 2011, Investigator Bushey, while accompanied by Sergeant

David Cantu of the New Braunfels Police Department, went to Appellant’s

apartment to present her with the court order and remove L.S. for her protection.

Id, at 17-18. Bushey, along with CPS investigator Leah Amescua, observed

Appellant’s vehicle in the apartment complex parking lot, and confirmed as such

by Appellant’s husband. Id at 19. Bushey went to Appellant’s apartment and

knocked repeatedly; however, no one answered the door. Id at 20. As they knocked

on Appellant’s door, “we could hear somebody inside the apartment. It was very

obvious that somebody was inside the apartment. We believed that it may be Ms.


                                         3
Sheffield and the child, [L.S.] due to seeing her vehicle in the parking lot.” Id at

21. Bushey then telephoned Appellant to inform her of the circumstances, but

Appellant told Bushey that she was at work and couldn’t speak with her at the

moment. Id. Appellant gave Bushey an address for her place of work in San

Antonio; however the San Antonio Police Department sent officers to that location

and discovered both the address and the business were “nonexistent.” Id at 22.

Bushey telephoned Appellant again repeatedly; however Appellant kept

disconnecting their calls, stating it was unprofessional to be on the phone while at

work. Id at 23-24. Bushey, during these calls, informed Appellant that Bushey had

a court order to remove Appellant’s children for their protection. Id at 24. The

phone exchanges and knocking on Appellant’s apartment door continued for

approximately one hour. Id at 26.        During this hour, Sergeant Cantu never

approached Appellant’s apartment and waited downstairs, never coming “face to

face” with Appellant at that time. Id at 52.

      Bushey and Amescua went to speak with the apartment maintenance man

while they were waiting for the events to play out. Id at 27. As they stood outside

speaking with him, they saw Appellant get into her vehicle and drive out of the

complex with a rear-facing car seat clearly visible in the backseat. Id at 27-29.

Bushey and Amescua followed Appellant in Bushey’s vehicle, while Sergeant

Cantu pursued as well in his white truck equipped with emergency lights and siren


                                           4
and a camper shell top. Id at 50. Appellant eventually turned onto Loop 337 and

steadily pulled away from Bushey, who was driving the posted 45 miles per hour

speed limit. Id at 30-32. Cantu followed approximately fifty feet behind Bushey. Id

at 56. Appellant turned off of Loop 337 and into the gravel driveway of the

“Rockin’ R Campground”. Id at 33. Bushey turned as well, with Sergeant Cantu

following behind. Id at 35. Appellant turned around, in a “doughnut” manner, in

the parking lot and began driving back towards Loop 337, passing Cantu face to

face as she drove down the driveway. Id. Sergeant Cantu turned his truck around

also and maneuvered to a position immediately behind Appellant’s car, with his

emergency lights flashing and siren blaring. Id at 35-37. As they left the

campground parking lot, other vehicles on Loop 337 pulled over as Cantu’s truck

approached with the lights and sirens activated. (R.R. Vol. 3, pp. 139). Bushey

stated she was driving the speed limit, but again Appellant and Cantu were quickly

pulling away from her because they were driving faster than she. (R.R. Vol. 3, pp.

39). Eventually, Appellant lead Cantu back to her apartment complex. Id. As they

approached the entrance to the complex, Officer Jace Hobbs arrived in his patrol

car, with his lights and sirens blaring. Id at 153. Appellant drove into the complex

through the main driveway, closely followed by Cantu and Hobbs. They continued

to follow Appellant as she drove around the perimeter of the complex for nearly

one minute, even passing the specific parking area for her apartment. Id at 155-7.


                                         5
Finally, Hobbs ordered her three times to stop her vehicle and identified himself as

“New Braunfels Police” over his loudspeaker; she finally parked in a spot well in

the back of the complex. (R.R. Vol. 3, pp. 156-7).

      After Appellant stopped her vehicle, the police made contact with her and

observed L.S. buckled into her car seat in the back. Id at 42. Sergeant Cantu

immediately spoke with Appellant, and got her out of her vehicle so the

investigation could continue. After Cantu asked her why she didn’t pull over

despite seeing all the other vehicles pull over when they saw his truck approach,

she stated that she didn’t realize “that [the white truck] was an emergency vehicle.”

(State’s Exhibit 48, 5:43 minute mark). While they are speaking, Cantu’s badge is

clearly seen hanging from his neck. (State’s Exhibit 48, 5:54 minute mark). In

Appellant’s vehicle Bushey observed marijuana seeds, loose marijuana pieces, and

stems on the front floorboard of Appellant’s vehicle she had just been driving. Id at

42. As she spoke with Appellant, Bushey also observed marijuana stuck in

between Appellant’s teeth and inside her mouth. Id at 43. Officer Chad Simmons

arrived at this point and unsuccessfully attempted to keep Appellant from

swallowing marijuana he observed in her mouth. Bushey took custody of L.S. and

Appellant was arrested for tampering with physical evidence, evading arrest or

detention with a vehicle, and child endangering.




                                          6
                       SUMMARY OF THE ARGUMENT

      The Appellant has presented two (2) points of error for the Court’s review.

As to the first point of error the State maintains that the evidence presented to the

jury at trial is legally sufficient to sustain the conviction for evading arrest or

detention in a vehicle. Appellant had already consciously decided to flee from two

Child Protective Services investigators when she subsequently evaded from

Detective Cantu; the jury was free to infer that because she was aware she was

being pursued by CPS that she would also be aware that the person driving the

white truck with the lights flashing was a law enforcement officer attempting to

stop her. The first point is without merit and should be rejected.

      As to the second complaint, the State argues having a ten month old baby in

the vehicle while Appellant actively evaded from Detective Cantu and CPS,

knowing their endgame was to remove Appellant’s baby because of substantiated

concerns for the baby’s welfare, certainly endangers that child and places her in

imminent danger during such evasion. The evidence presented was legally

sufficient to uphold the jury’s conviction for such charge.

      For these reasons the State respectfully asks the court to overrule the

Appellant’s two points of error and affirm, in all things, the convictions rendered

by the jury in this matter.




                                          7
                            COUNTERPOINT NO. 1

                   State’s Reply to Appellants’ Point of Error One
                            Appellant’s Brief pp. 8-13

          THE EVIDENCE PRESENTED AT TRIAL PERTAINING
      TO THE APPELLANT’S KNOWLEDGE THAT SERGEANT
      CANTU WAS A LAW ENFORCEMENT OFFICER WAS
      LEGALLY SUFFICIENT TO SUSTAIN THE JURY’S VERDICT
      AS TO THE EVADING ARREST OR DETENTION WITH A
      VEHICLE.
      ACCORDINGLY, APPELLANTS’ ISSUE PRESENTED SHOULD
      BE OVERRULED AND THE JUDGMENT AFFIRMED.


      The Appellant contends in this point of error that evidence presented at trial

as to whether Appellant knew Sergeant Cantu was a law enforcement officer when

she was evading arrest or detention from him in her vehicle was legally insufficient

to sustain the jury verdict because he was driving an unmarked truck with a camper

shell and dressed in the more casual police attire. The jury listened to testimony of

the witnesses, including extensive cross-examination of the State’s witnesses by

Appellant’s attorney. They were aware Appellant was already in the process of

absconding from two CPS investigators who had substantiated concerns for

Appellant’s child. In addition, the jury was privy to a video in which they could

clearly see Appellant driving with Sgt. Cantu’s truck directly behind her with his

emergency lights and siren activated. The jury was free to believe whichever

witnesses and testimony they found most credible. Considering the strength of the


                                          8
evidence presented at trial, the jury’s verdict of “guilty” as to the evading charge is

legally sufficient and should be upheld on appeal.


      When examining an issue for legal sufficiency, the court must review the

evidence “in the light most favorable to the verdict to determine whether ‘any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.’” Brooks v. State, 323 S.W.3d 893, 899 (Tex.Crim.App. 2010).

Under this standard, the jury’s duty is to resolve any conflicts in the testimony,

weigh all the evidence, and draw any reasonable inferences from all the facts

presented. Jackson v. Virginia, 443 US 307, 319, 98 S.Ct. 2781, 61 L.Ed.2d 590

(1979), see also Laster v. State, 275 S.W.3d 512, 522 (Tex.Crim.App. 2009). Each

fact does not in and of itself need to point directly to the guilt of the accused as

long as the total cumulative force of all the incriminating circumstances is

sufficient to support the conviction. Hooper v. State, 214 S.W.3d 9, 13

(Tex.Crim.App. 2007).


      Reconciliation of evidentiary conflicts is a job solely relegated to the trier of

fact. Bowden v. State, 628 S.W.2d 782, 784 (Tex.Crim.App. 1982). The jury may

believe some witnesses and refuse to believe others, just as it is free to accept

portions of testimony of certain witnesses and reject other portions from the same

witness. Lafoon v. State, 543 S.W. 2d 617 (Tex.Crim.App. 1976); see also

Hernandez v. State, 538 S.W.2d 127 (Tex.Crim.App. 1976). Accord Nixon v.
                                           9
State, 572 S.W.2d 699 (Tex.Crim.App. 1978). Where conflicting testimony is

given, it is the exclusive province of the jury to reserve conflicts in the evidence.

Wesbrook v. State, 29 S.W. 3d 103, 111 (Tex.Crim.App. 2002). After a guilty

verdict is returned, it is presumed that the factfinder resolved any conflicting

inferences supported by the record in favor of the prosecution. Clayton v. State,

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


      To find someone guilty of evading arrest or detention with a vehicle, the

prosecution must prove beyond a reasonable doubt that the Appellant fled, in a

vehicle, from a person she knows is a peace officer lawfully attempting to arrest or

detain her. TEX.PEN. CODE ANN. §38.04 (a),(b)(1). Intent is a fact question for the

jury and may be inferred from other facts in the record, including the words, acts

and conduct of the Appellant and from the circumstances surrounding the events in

question. Manrique v. State, 994 S.W.2d 640, 649 (Tex.Crim.App. 1999)(en banc);

see also Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App, 2004). The crime of

evading arrest or detention is a continuous crime. Hobbs v. State, 175 S.W.3d 777

(Tex.Crim.App. 2005). While speed, distance, and the duration of a pursuit may be

factors in considering whether a defendant intentionally fled, no specific speed,

distance, or duration is required to demonstrate intent if other evidence establishes

intent. Mayfield v. State, 219 S.W.3d 538, 541 (Tex.App.—Texarkana 2007, no

pet.). Moreover, the mere fact that an officer is in an unmarked car is not reason in

                                          10
and of itself to render a conviction invalid. Other cases have examined a similar

scenario and sustained such a conviction. Bradden v. State, WL 2830865,

(Tex.App.—Waco, 2004 no pet.)(memo. op. not designated for publication), Lide

v. State, WL 2505631, (Tex.App.—Eastland, 2007 no pet.)(memo. op. not

designated for publication); Griffin v. State, 701 S.W.2d 958, 959 (Tex.App.—Ft.

Worth 1986, no pet.).


      In the case at hand, the only element in contention is whether Appellant

knew Sergeant Cantu was a law enforcement officer when she evaded arrest or

detention. (Appellant’s brief, pp. 8). Appellant postulates that because Sergeant

Cantu drove an unmarked pickup truck with a camper shell and was in a “polo”

style shirt that bore the New Braunfels Police Department insignia that it is

unreasonable to believe Appellant would have recognized him to be a peace officer

during the evading arrest; thus the jury was could not discern or infer from the

evidence and witnesses that Appellant knew Cantu was a law enforcement officer.


      When the evidence is reviewed in the light most favorable to the verdict, the

following facts are undisputed: (1) two CPS investigators were at Appellant’s

apartment to remove L.S. because of substantiated concerns for L.S.’s safety (R.R.

Vol. 3, pp. 16, 22) , (2) Appellant was aware that Bushey was trying to reach her in

order to serve her with the court order (R.R. Vol. 3, pp. 23-4), (3) Appellant had

met Bushey previously and recognized her (R.R. Vol. 3, pp. 28), (4) Appellant had
                                          11
lied twice that very day to Bushey by first telling her she was not at her apartment

and second by giving a false place of employment and address in San Antonio

(R.R. Vol. 3, pp. 22), (5) after Bushey knocked on Appellant’s apartment door,

Appellant took L.S. and drove away from her apartment complex (R.R. Vol. 3, pp.

29, 41), (6) Appellant turned around in a gravel parking lot and came face to face

with Cantu (R.R. Vol. 3, pp. 35, 92), (7) Sergeant Cantu followed immediately

behind Appellant’s vehicle with his lights and sirens on, (8) Appellant did not stop

her vehicle or pull out of the way despite seeing a truck with emergency lights

flashing and the sirens activated behind her, (9) Sergeant Cantu is seen on video

driving directly behind Appellant with his emergency lights activated (State’s

Exhibit 42, 2:25 minute mark, (10) Appellant does not stop until nearly one minute

after a second police vehicle with lights flashing begins to follow her (State’s

Exhibit 42, 2:25- 3:23 minute mark), and (11) these events occurred during the day

(R.R. Vol. 3, pp. 142). The jury was free to accept or reject any or all of this

testimony and great deference is given to their fact finding. Adelman v. State, 828

S.W.2d 418, 421 (Tex.Crim.App. 1992); see also, Rollerson v. State, 227 S.W.3d

718, 724 (Tex.Crim.App. 2007).

      There is no dispute that Appellant was aware that she was being pursued by

Bushey, and there is no controverting testimony that Appellant was not trying to

dodge a court order to remove her children for their protection. No issue likewise


                                           12
has been made that Sergeant Cantu was present to assist the CPS investigators.

Sergeant Cantu drove an unmarked pickup truck with a camper shell during the

events in question; however, the truck had working emergency lights and sirens

which were clearly activated while he was following Appellant. Furthermore,

when Appellant made the quick U-turn in the Rockin’ R parking lot, she came face

to face with Cantu and had to drive deliberately around his truck while his

emergency lights were activated. (R.R. Vol. 3, pp. 93). Further, when Appellant

drove on to the grassy area of the Rockin’ R driveway to circumvent Cantu’s truck,

Cantu’s badge around his neck and New Braunfels Police Department insignia on

his shirt would have been visible. Id. He followed her, lights flashing and sirens

now on, from the campground all the way back to the apartment complex. The jury

heard testimony that other vehicles on both sides of the road pulled over or got out

of the way when Cantu passed them with his lights and sirens on. (R.R. Vol. 3, pp.

94-5). Further, the jury heard testimony and personally saw on Hobbs’ video that

even after Appellant saw Hobb’s patrol car with his lights and sirens on drive

behind her and Cantu, she still failed to pull over despite passing numerous safe

places in the parking lot. (R.R. Vol 3, pp. 98);(State’s Exhibit 42, 2:22 – 3:22

minute mark). The only direct controverting the jury heard was on Officer

Simmons' video when Appellant states that she didn’t know Cantu’s truck was an

“emergency vehicle.” (State’s Exhibit 48, 5:43 minute mark). The jury was free to


                                          13
believe or disregard any testimony in whole or in part in deciding their verdict. It is

also the province of the jury to evaluate witness’ credibility and make such a

determination. As such, it is certainly reasonable that the jury concluded, after

evaluating all credibility and testimony they had been privy to, that Appellant

actually was aware Cantu was a law enforcement officer and she knowingly

evaded arrest or detention from him.

      Appellant cites Redwine v. State for support of his argument. However, the

facts in Redwine differ significantly from Appellant’s case. Redwine v. State, 305

S.W.3d 360 (Tex.App.—Houston [14th Dist.] 2010 pet. ref'd). In Redwine, the

appellant was driving on a rural road when officers in a patrol car passed him

going the opposite direction. The officers turned around to pull the appellant over,

but they never activated their emergency lights or siren. The appellant drove to his

house and ran; when the officers got to the appellant’s driveway, they shouted,

“Sheriff!” The appellant eventually returned on foot to his car where he was

arrested for evading arrest with a vehicle. In this case, only one officer testified

regarding the appellant’s failure to yield to the officers’ authority, and that officer

testified in an unconvincing manner. Thus, the Court of Appeals determined the

evidence was legally insufficient to sustain a conviction for evading arrest with a

vehicle because there was no evidence that appellant evaded arrest while he was in

his vehicle.


                                            14
      Appellant argues that the holding in Redwine controls in her case, and posits

that despite Cantu’s activating the emergency lights and sirens on his pickup truck,

this does not equate with a requisite show of authority that would have put

Appellant on notice that a law enforcement officer was attempting to stop her.

However, several significant differences are discerned from the facts in Redwine

and the facts in Appellant’s situation. First, the appellant in Redwine was not

attempting to elude a separate authority figure (i.e. CPS) contemporaneous to the

evading arrest or detention from a law enforcement officer. Second, the officers in

Redwine never activated their emergency lights or sirens. Third, the officers made

no show of authority in Redwine until the appellant ran away on foot. Fourth, in

Redwine, a second patrol car with activated lights and sirens never appeared to

attempt to stop the appellant. These additional facts in Appellant’s case provide

extra support for the jury’s inferences and conclusions drawn that led them to

convict Appellant for the charge of evading arrest or detention with a vehicle.

      Appellant was already on notice that authorities were looking for her in

regards to the situation with her children. It is thus a logical inference for the jury

to have made that once she was already evading one set of authorities she would

continue knowingly evade a second set of authorities. See (R.R. Vol. 3, pp. 142-3).

Aside from that inference, the jury was aware Appellant had already lied to Bushey

multiple times that morning, when she turned around in the Rockin’ R driveway


                                            15
she directly passed Cantu in the unmarked truck with the lights and sirens on and

she saw his face, she continues to evade while he is behind her with his lights and

sirens activated despite other motorists stopping for him, even after Hobbs’ pulls in

behind them with his lights and sirens activated Appellant still does not stop her

vehicle for nearly another minute (R.R. Vol. 3, pp. 152). The jury was free to infer

her intent from the facts as presented to them and all the surrounding

circumstances. The jury was free to believe or disbelieve any portions, large or

small, of testimony of the witnesses. It is not unreasonable to believe, after

weighing all evidence and testimony, the jury concluded Appellant was guilty of

evading arrest or detention in a vehicle because she knew Sergeant Cantu was a

law enforcement officer.

      Considering the strength of the evidence adduced at trial, coupled with the

fact that the jury weighs the credibility of the witnesses and testimony and is free

to accept or discount any portion of any witness’ testimony, the evidence is legally

sufficient to sustain the jury’s verdict of guilty. For those reasons stated above the

Appellant’s Point of Error One should be overruled and the judgment of the trial

court should, in all things, be affirmed.




                                            16
                               COUNTERPOINT NO. 2


                State’s Reply to Appellant’s Point of Error Two
                          Appellant’s Brief pp. 14-16

           THE EVIDENCE PRESENTED AT TRIAL PERTAINING
      TO THE CHILD ENDANGERING CHARGE WAS LEGALLY
      SUFFICIENT TO SUSTAIN THE JURY’S CONVICTION FOR
      SUCH CHARGE CONSIDERING APPELLANT PURPOSELY
      PLACED HER TEN MONTH OLD BABY IN HER VEHICLE
      WHILE SHE EVADED ARREST OR DETENTION.
      ACCORDINGLY, APPELLANTS’ ISSUE PRESENTED                             IS
      WITHOUT MERIT AND SHOULD BE DENIED.


      The Appellant contends in this point of error that the evidence is legally

insufficient to sustain the jury’s verdict as to the charge of child endangering.

Appellant argues that the State’s proof fails because, under the circumstances

shown, she did not place her child in imminent danger because she did not

knowingly evade arrest from a law enforcement officer. The jury was free to weigh

the credibility of all witnesses and testimony; they could reasonably infer that

evading arrests are inherently dangerous acts in which a ten month old baby would

be in imminent danger from being inside the vehicle during the evading arrest.


      When examining an issue for legal sufficiency, the court must review the

evidence “in the light most favorable to the verdict to determine whether ‘any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.’” Brooks, 323 S.W.3d at 899. Under this standard, the jury’s

                                         17
duty is to resolve any conflicts in the testimony, weigh all the evidence, and draw

any reasonable inferences from all the facts presented. Jackson, 443 US at 319, see

also Laster, 275 S.W.3d at 522. Each fact does not independently need to point

directly to the guilt of the accused as long as the cumulative force of all the

incriminating circumstances is sufficient to support the conviction. Hooper, 214

S.W.3d at 13.


          A person commits the crime of child endangering if “he intentionally,

knowingly, recklessly, or with criminal negligence, by act or omission, engages in

conduct that places a child younger than 15 years in imminent danger of death,

bodily injury, or physical or mental impairment. TEX.PEN.CODE ANN. §22.041(c).

The statute does not require that person intend or even know that his conduct

places the child in such imminent danger, only that he engages in conduct that

places the child in imminent danger. Contreras v. State, 54 S.W.3d 898-905

(Tex.App.—Corpus Christi 2001, no pet). “Imminent” has been defined as “ready

to take place, near at hand, impending, hanging threateningly over one’s head,

menacingly near.” Devine v. State, 786 S.W.2d 268, 270 (Tex.Crim.App. 1989).

Merely the potential for danger in a situation is inadequate to rise to the level of

imminent. Millslagle v. State, 81 S.W.3d 895, 898 (Tex.App.—Austin 2002, pet.

ref'd).

          Specifically in regards to the sufficiency of the evidence as to Appellant’s

                                             18
conviction for evading arrest or detention in a vehicle, the State relies on and

reiterates its arguments and authorities made in its Response to Point of Error

Number One, regarding legal sufficiency. The State maintains that the evidence

presented to the jury at trial was clearly sufficient to sustain Appellant’s conviction

for such charge.

      Appellant was actively evading detention with her vehicle while her

youngest child was in the vehicle with her. She was speeding away from Bushey

and driving erratically, taking a quick turnaround in a gravel parking lot to attempt

to elude someone who was attempting to enforce a court order to protect

Appellant’s baby. (R.R. Vol. 3, pp 138). She continued to evade, even after a

second patrol car began following her with emergency lights and sirens activated.

She even purposely drove past her own parking area while driving away from both

officers. Evading arrest in a vehicle is an extremely dangerous crime because of its

inherent unpredictability; and Sergeant Cantu testified this was an imminently

dangerous situation. (R.R. Vol. 3, pp. 139, 141). Not only was L.S. subject to the

erratic driving of her mother in that vehicle, but she was also subject to the driving

of any other motorist who may be attempting to avoid Appellant and the hot

pursuit chase she was leading law enforcement on. L.S. was appropriately strapped

into her car seat; however, that would be insufficient should anything happen while

Appellant sped and made quick U-turns to evade law enforcement and CPS, all the


                                           19
while subjecting her infant daughter to the presence and odor of marijuana. Bushey

echoed this concern when she also testified that these events created a dangerous

situation. (R.R. Vol. 3, pp. 72). It goes without saying that when a suspect has

decided to actively flee authorities in a vehicle that danger is constantly present

and the level of danger can rise with every passing minute and mile.


      This is not a situation in which Appellant left her child unattended in the

vehicle while she went into a store to use drugs (as in Millslagle), or in which

Appellant even left the baby at home with other unattended children while she left

the house and eventually was arrested (accord Moreno). Millslagle, 81 S.W.3d at

898; accord Moreno v. State, No. 07-01-0441-CR, 2003 WL 21516575

(Tex.App.—Amarillo       2003,   no    pet.)(mem.    op.,   not    designated    for

publication)(defendant arrested for DWI, after leaving three children at home

alone in custody of twelve year old child). When Appellant made the conscious

decision to place her baby in her vehicle, with marijuana, while she attempted to

flee in a vehicle, she placed her baby in imminent danger because an active

evading arrest or detention in a vehicle is a precarious situation in which anything

could go wrong at any minute. The fact that no one was injured or no accidents

occurred while Appellant was evading with her baby in the car does not excuse or

limit the dangerous situation in which Appellant purposely placed her child.


      Appellant was actively evading from representatives of multiple agencies.
                                         20
She drove erratically and, by multiple accounts, took some evasive maneuvers.

Evading arrest in a vehicle is considered dangerous for a legitimate reason; not

only is one at the whim of the defendant driver of the vehicle who has already

decided to get away at all costs, but one is also subject to the actions of other

drivers in traffic who are trying to avoid what is transpiring. To subject a ten

month old baby to such conditions is to place that baby in imminent danger. For

those reasons stated above the Appellant’s Point of Error Two should be overruled

and the judgment of the trial court should, in all things, be affirmed.




                                           21
                             CONCLUSION AND PRAYER


      Wherefore, premises considered, Appellee prays that this Honorable Court

of Appeals affirm in all matters the judgment of the trial court in this case.


                                                Respectfully submitted

                                                _/s/ Laura Burton Bates_
                                                Laura Burton Bates
                                                Assistant Criminal District Attorney
                                                Comal County Criminal District
                                                Attorney’s Office
                                                150 N Seguin Street
                                                New Braunfels, Texas 78130
                                                Phone: 830-221-1300
                                                Fax: 830-608-2008
                                                LKBTEXAS@GMAIL.COM
                                                SBN: 24035014




                                           22
                          CERTIFICATE OF SERVICE

        I, Laura Burton Bates, attorney for the State of Texas, Appellee, hereby

certify that a true and correct copy of this brief has been delivered to the following

individual, electronically, this 28th day of August, 2015.


                                                     _/s/ Laura Burton Bates_
                                                     Laura Burton Bates
Counsel for Appellant

Mr. Joseph Garcia III
200 N. Seguin
New Braunfels, TX 78130
Joeg3@sbcglobal.net




                      CERTIFICATE OF COMPLIANCE

       I, Laura Burton Bates, hereby certify that this document was prepared in
MS Word and it does not exceed the allowable length for an appellate brief
pursuant to Tex. R. App. Pro. 9.4, as amended and adopted on November 30, 2012,
by Order of the Texas Court of Criminal Appeals. The approximate total of words
in this document, as calculated by the word processing software, is 5684 words.


                                                 _/s/ Laura Burton Bates_______
                                                    Laura Burton Bates




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