                                           COURT OF APPEALS
                                        EIGHTH DISTRICT OF TEXAS
                                             EL PASO, TEXAS

                                                             §
VICTOR MANUEL GALLEGOS,                                                          No. 08-14-00274-CR
                                                             §
                                      Appellant,                                    Appeal from the
                                                             §
v.                                                                             County Court at Law No. 7
                                                             §
THE STATE OF TEXAS,                                                            of El Paso County, Texas
                                                             §
                                       Appellee.                                 (TC# 20120C00778)
                                                             §

                                                   OPINION

          Victor Manuel Gallegos is appealing his conviction of evading arrest. We reform the

judgment to reflect that Gallegos entered a plea of not guilty, and affirm the judgment as so

reformed.

                              PROCEDURAL AND FACTUAL SUMMARY

          Gallegos was charged with five misdemeanor offenses alleged to have been committed

on June 26, 2011: (1) class-A misdemeanor criminal mischief (cause number 20120C00815); (2)

burglary of a vehicle (cause number 20120C00942); (3) burglary of a vehicle (cause number

20120C01669); (4) theft (cause number 20120C01670); and (5) evading arrest (cause number

20120C00778). Gallegos entered a plea of not guilty to each charge1 and the cases were tried

together before a jury.


1
    The judgment erroneously recites that Gallegos entered a plea of guilty.
       The evidence showed that Gallegos and Julio Acosta attempted to enter the Nova Luna

bar through a back door used only by bar personnel and band members. One of the bar’s

security guards, Fernando Chavez, stopped them and told them they had to enter through the

front door and pay the cover charge like everyone else. Chavez watched Gallegos and Acosta

get into their vehicle and drive “crazy” through the parking lot. The vehicle stopped and one

man got out of the car while the other man parked the vehicle. Acosta walked through the

parking lot and checked vehicle doors to see if they were locked. Chavez continued watching

from behind a rock wall, and he saw Acosta take the hubcaps off of a truck while Gallegos acted

as a lookout. Chavez alerted other security personnel at the bar when Gallegos started chasing

one of the parking lot attendants.

       Deputy Sheriff Juan Munoz was patrolling in the area that evening, and as he drove by

Nova Luna, one of the bar’s security guards flagged him down. The security guard told him that

two men were trying to break into cars in the parking lot. Munoz sometimes worked off-duty

security at the bar, so he was familiar with the area. Munoz drove his patrol unit into the parking

lot and used a spotlight to find the two men. After a brief chase, Munoz caught up to Acosta and

took him into custody. The bar’s security personnel told Munoz that the second subject had run

northbound.    Munoz drove his patrol unit toward a nearby business and found Gallegos

crouching behind a dumpster, but when Munoz told him not to move, Gallegos jumped over a

wall that was six feet in height. Gallegos ran back towards Nova Luna with Munoz in pursuit.

The bar’s security personnel moved toward Gallegos and he stopped running. Munoz caught up

to Gallegos and took him into custody.


                                               -2-
        After securing Acosta and Gallegos, Munoz checked the vehicles in the parking lot and

observed that the door to a Ford truck was open. The truck’s center console was open and a case

for eyeglasses was on the ground next to the truck. Munoz saw that the hubcaps were missing

from another truck. Munoz also noticed that a Mazda had damage to the door handle. He

located Gallegos’s gray Dodge Neon in the parking lot and saw items inside of the car which had

been stolen from vehicles in the bar’s parking lot.

        Gallegos’s co-defendant, Acosta, testified for the defense. Like Gallegos, he was charged

with five offenses, but he agreed to plead guilty to four of the offenses in exchange for dismissal

of one of the cases. Acosta had been placed on probation for fourteen months, and at the time of

trial, he had completed his probation and paid all of his fees. Acosta testified that he was driving

Gallegos’s vehicle that evening because Gallegos was more intoxicated. Acosta admitted that he

broke into cars in the Nova Luna parking lot, but he maintained that Gallegos did not assist him

in committing the offenses because he “didn’t want nothing to do with it.”

        Gallegos testified that he was extremely drunk that evening and he tried to convince

Acosta to stop breaking into cars, but Acosta would not listen to him. He denied acting as a

lookout, but he knew that Acosta was putting the stolen property in his car.

        The court’s charge included an instruction on the law of parties, but that instruction did

not apply to the evading arrest offense. The jury found Gallegos guilty in all five cases. The

trial court sentenced Gallegos to confinement for 365 days in the El Paso County Jail, probated

for six months, and “a fine of $300.00 Probated for $0.00.”2


2
   The trial court entered judgments of acquittal in the criminal mischief case (cause number 20120C00815) and in
the burglary case (cause number 20120C00942). The State filed notice of appeal in those two cases (appellate cause
                                                      -3-
                                SUFFICIENCY OF THE EVIDENCE

        In Issue Six, Gallegos challenges the legal sufficiency of the evidence supporting his

conviction of evading arrest.3 More specifically, he asserts that the evidence failed to establish

that he knew Deputy Munoz was a peace officer.

                                            Standard of Review

        In reviewing the sufficiency of the evidence to determine whether the State proved the

elements of the offense beyond a reasonable doubt, we apply the Jackson v. Virginia standard.

Brooks v. State, 323 S.W.3d 893, 895-96 (Tex.Crim.App. 2010) (citing Jackson v. Virginia, 443

U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Under that well-known standard, a

reviewing court must consider all evidence in the light most favorable to the verdict and in doing

so determine whether a rational justification exists for the jury’s finding of guilt beyond a

reasonable doubt. Brooks, 323 S.W.3d at 894-95 (citing Jackson, 443 U.S. at 319, 99 S.Ct. at

2789). The trier of fact is the sole judge of the weight and credibility of the evidence, and we

must presume that the fact finder resolved any conflicting inferences in favor of the verdict and

defer to that resolution. See TEX.CODE CRIM.PROC.ANN. art. 38.04 (West 1979); Dobbs v. State,

434 S.W.3d 166, 170 (Tex.Crim.App. 2014). Further, we are not permitted to reevaluate the

weight and credibility of the evidence or substitute our judgment for that of the fact finder.

Isassi v. State, 330 S.W.3d 633, 638 (Tex.Crim.App. 2010). Our task is to determine whether,

based on the evidence and reasonable inferences drawn therefrom, a rational juror could have



numbers 08-14-00271-CR and 08-14-00272-CR).
3
  Gallegos filed a single brief in cause numbers 08-14-00274-CR, 08-14-00275-CR, and 08-14-00276-CR raising a
total of six issues. Issue Six is the only issue pertinent to this appeal.
                                                    -4-
found the essential elements of the crime beyond a reasonable doubt. Id. This legal sufficiency

standard applies equally to both direct and circumstantial evidence.       Clayton v. State, 235

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

                                             Evading Arrest

        A person commits the offense of evading arrest if he intentionally flees from a person he

knows is a peace officer attempting lawfully to arrest or detain him. See TEX.PENAL CODE ANN.

§ 38.04(a)(West Supp. 2015). A person commits a crime under section 38.04 only if he knows

that a law enforcement officer is attempting to arrest him, but nevertheless refuses to yield to a

show of authority by the officer. Thompson v. State, 426 S.W.3d 206, 209 (Tex.App.--Houston

[1st Dist.] 2012, pet. ref’d).

        After apprehending Acosta, Deputy Munoz drove in the area near the bar and used his

patrol unit’s spotlight to search for Gallegos. Munoz was in uniform and driving a marked

Crown Victoria patrol unit.       When he found Gallegos crouching behind a dumpster

approximately 100 yards from Nova Luna, Munoz identified himself as a member of the

Sheriff’s Department and told him not to move, but Gallegos jumped over a wall and ran from

Munoz. Gallegos ran back toward Nova Luna with Munoz in pursuit. The bar’s security

personnel moved toward Gallegos and he stopped running. Munoz caught up to him and took

him into custody. Munoz testified that Gallegos could not have mistakenly believed he was

anything other than a law enforcement officer. When taken in the light most favorable to the

verdict, the evidence is legally sufficient to permit a rational trier of fact to find beyond a

reasonable doubt that Gallegos knew Munoz was a peace office attempting to arrest or detain


                                              -5-
him. Issue Six is overruled. We reform the judgment to reflect that Gallegos entered a plea of

not guilty, and affirm the judgment as so reformed.


                                            STEVEN L. HUGHES, Justice
December 9, 2015

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)




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