                                  NO. 12-16-00094-CR

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

SAMUEL RICARDO ANAYA, JR.,                       §      APPEAL FROM THE 238TH
APPELLANT

V.                                               §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §      MIDLAND COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Samuel Ricardo Anaya, Jr. appeals from his conviction for evading arrest or detention.
In three issues, he contends the evidence is insufficient to support his conviction, his due process
rights were violated, and the State engaged in improper closing argument. We affirm.


                                          BACKGROUND
       Sergeant Kenneth Angell with the Midland Police Department testified that, on the night
of the offense, he was in his marked patrol vehicle and was wearing his police uniform when he
responded to a call regarding a potential vehicle burglary by two men. He stopped his vehicle
when he saw two men emerge from the side of a fence. Angell testified that his vehicle’s
headlights were on, but his red and blue lights were not.
       One man began retreating into the shadows when he saw Angell. The other man,
Appellant, carried an item wrapped in a shirt. Once Angell exited his vehicle, Appellant tried to
distance himself from Angell. He placed his hand up in a “stiff-arm fashion.” Angell stated,
“Hey. Police. Come here. Police. Stop.” Appellant did not stop. Angell pursued Appellant, who
sped up whenever Angell sped up. Angell testified that Appellant was saying, “Why? Why?
Why?” Angell instructed Appellant to stop, get on the ground, and quit running, but Appellant
failed to comply. Eventually, Angell caught Appellant. Officer Ciro Chairez of the Midland
Police Department testified that he placed Appellant in handcuffs while Angell attempted to
locate the second man who had fled the scene. That man was never found.
         Angell testified that two new sets of hair clippers were wrapped in the shirt that
Appellant had been carrying. He testified that the clippers were still inside their individual
packaging. Angell subsequently learned that, on the night of the offense, there was a theft at a
local shop that sold barber supplies.
         The State charged Appellant with evading arrest or detention, enhanced by two prior
convictions. Appellant pleaded “not guilty.” A jury found Appellant guilty of evading arrest or
detention. The trial court found the indictment’s two enhancement paragraphs to be “true,” and
sentenced Appellant to imprisonment for fifteen years.


                                       SUFFICIENCY OF THE EVIDENCE
         In his first issue, Appellant challenges the sufficiency of the evidence to support his
conviction. Appellant argues that he acted reasonably when backing away from Sergeant Angell
and that the evidence failed to show he knew he was moving away from an officer, as opposed to
someone intending to cause him harm.
Standard of Review and Applicable Law
         A person commits the offense of evading arrest or detention when he intentionally flees
from a person he knows is a peace officer attempting to lawfully arrest or detain him. See TEX.
PENAL CODE ANN. § 38.04(a) (West Supp. 2016). When reviewing the sufficiency of the
evidence, we determine whether, considering all the evidence in the light most favorable to the
verdict, the jury was rationally justified in finding guilt beyond a reasonable doubt.1 Brooks v.
State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). The jury is the sole judge of the witnesses’
credibility and the weight to be given their testimony. Id. We give deference to the jury’s
responsibility to fairly resolve evidentiary conflicts, weigh the evidence, and draw reasonable
inferences from basic facts to ultimate facts. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.
App. 2007). Circumstantial evidence is as probative as direct evidence in establishing the
accused’s guilt. Id.


         1
           Appellant also challenges the factual sufficiency of the evidence. However, “the Jackson v. Virginia legal-
sufficiency standard is the only 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 895.


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Analysis
       In this case, the jury heard evidence that Sergeant Angell identified himself as a police
officer, was in a marked patrol vehicle, and was wearing his uniform at the time of the offense.
Instead of responding to Angell’s commands to stop, Appellant attempted to flee the scene.
Angell testified that, even after being caught, Appellant got on his hands and knees, did not want
to lay on the ground, and struggled to be handcuffed.
       Because Sergeant Angell was in a marked vehicle, was wearing his uniform, announced
his identity, and commanded Appellant to stop, but Appellant ignored Angell’s commands and
resisted even after being captured, the jury could reasonably conclude that Appellant knew
Angell was a police officer attempting to lawfully arrest or detain him, but Appellant
intentionally fled from Angell. See TEX. PENAL CODE ANN. § 38.04(a). “Even a dispirited, brief
attempt to walk away from an officer’s command to stop has been held to be sufficient flight to
constitute evading arrest or detention.” Henderson v. State, No. 12-09-00399-CR, 2011 WL
2162820, at *5 (Tex. App.—Tyler May 31, 2011, no pet.) (mem. op., not designated for
publication). Viewing the evidence in the light most favorable to the verdict, we conclude that
the jury was rationally justified in finding, beyond a reasonable doubt, that Appellant committed
the offense of evading arrest or detention. See Brooks, 323 S.W.3d at 899. We overrule issue
one.


                                         DUE PROCESS
       In his second issue, Appellant contends that his conviction and sentence should be set
aside because his due process rights were violated. According to Appellant, he did nothing
wrong or illegal, could not have expected a police encounter, and “[a] conviction and fifteen (15)
year sentence for a flawed encounter with law enforcement seems harsh and unreasonable.”
Analysis
       We first note that Appellant failed to preserve his due process complaint by neglecting to
raise it in the trial court. See TEX. R. APP. P. 33.1(a); see also Pena v. State, 285 S.W.3d 459,
463-64 (Tex. Crim. App. 2009). Even had Appellant preserved error, his complaint fails for two
reasons.
       First, Appellant’s conviction is supported by legally sufficient evidence. The Texas
Court of Criminal Appeals has rejected the argument that a conviction supported by legally



                                                3
sufficient evidence is in violation of due process. See Estrada v. State, 313 S.W.3d 274, 304-05
(Tex. Crim. App. 2010); see also Brooks, 323 S.W.3d at 899 (Jackson sets forth sufficiency
standard of review under due process clause).
       Second, Appellant was charged with a state jail felony, enhanced to a second degree
offense by two prior felony convictions. His fifteen-year sentence falls within the applicable
statutorily prescribed punishment range. See TEX. PENAL CODE ANN. §§ 12.33 (identifying
second degree felony punishment of two to twenty years in prison), 12.425(b) (describing
enhancement of state jail felony), 38.04(b)(1)(A) (stating when evading is a state jail felony)
(West 2011 & West Supp. 2016). The trial court’s decision to impose a particular sentence
within the statutorily prescribed range of punishment does not violate due process. See Barrow
v. State, 207 S.W.3d 377, 381 (Tex. Crim. App. 2006).                          Accordingly, because neither
Appellant’s conviction nor his sentence violate due process, we overrule issue two.


                                           CLOSING ARGUMENTS
       In his third issue, Appellant contends that the State engaged in improper closing
argument.
Standard of Review
       Proper jury argument consists of summation of the evidence, reasonable deductions from
the evidence, answers to arguments of opposing counsel, and pleas for law enforcement. Brown
v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008). To determine if the prosecutor made an
improper argument, we consider the entire argument in context. See Rodriguez v. State, 90
S.W.3d 340, 364 (Tex. App.—El Paso 2001, pet. ref’d).
Analysis
       During closing, the State argued as follows:


       . . . That is your only decision at this point, ladies and gentlemen. Is he responsible or not? It’s a
       serious crime.

       How serious, what the consequence ought to be, again, that’s a decision the judge will have to
       make after the guilty verdict. Your decision –


Defense counsel objected, stating “Whether or not there’s guilt is solely to be determined by the
jury, and they can’t even consider what the -- anything about any punishment.” Counsel then



                                                         4
moved for a mistrial. The trial court denied the motion for mistrial, but instructed the jury that
“it is your decision to go deliberate on guilt or innocence.” Defense counsel further objected that
the State’s argument is “outside the four parameters for acceptable closing argument.” The trial
court replied, “Please move on.”
       On appeal, Appellant argues that the State’s argument was outside the realm of proper
jury argument because the “prosecutor was informing the jury a ‘guilty’ verdict was a forgone
conclusion; and . . . causing them to ponder punishment, which they were already told, by the
court not to consider during their deliberations.” However, immediately after the challenged
argument occurred, the trial court instructed the jury that it is solely responsible for determining
guilt or innocence. The State then reiterated that it was the jury’s responsibility to make that
decision. In the jury charge, the trial court also included the following instructions:


       All persons are presumed to be innocent and no person may be convicted of an offense unless each
       element of the offense is proved beyond a reasonable doubt.

       ...

       The fact that a person has been arrested, confined, or indicted for, or otherwise charged with, the
       offense gives rise to no inference of guilt at his trial.

       ...

       The presumption of innocence alone is sufficient to acquit the defendant, unless the jurors are
       satisfied beyond a reasonable doubt of the defendant’s guilt after careful and impartial
       consideration of all the evidence in the case.

       ...

       In the event you have a reasonable doubt as to the defendant’s guilt after considering all the
       evidence before you, and these instructions, you will acquit the defendant and say by your verdict
       “Not guilty.”


       We construe the challenged argument as nothing more than an emphasis of the jury’s
responsibility to determine whether Appellant was guilty or not. Moreover, the trial court’s
instructions to the jury are generally considered sufficient to cure any improprieties that occur at
trial. Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009). The record does not
indicate that the State’s argument was of such a nature that the jury could not ignore it and fairly
examine the evidence in arriving at its verdict. See id. This is particularly true in light of the
trial court’s instructions that a determination of guilt or innocence was within the jury’s sole




                                                       5
discretion. We presume that the jury followed the trial court’s instructions. See id. For these
reasons, we conclude that the trial court properly denied Appellant’s motion for mistrial. We
overrule issue three.


                                                   DISPOSITION
         Having overruled Appellant’s three issues, we affirm the trial court’s judgment.

                                                                 GREG NEELEY
                                                                    Justice



Opinion delivered March 15, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)



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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                           MARCH 15, 2017


                                         NO. 12-16-00094-CR


                                SAMUEL RICARDO ANAYA, JR.,
                                         Appellant
                                            V.
                                   THE STATE OF TEXAS,
                                         Appellee


                                Appeal from the 238th District Court
                          of Midland County, Texas (Tr.Ct.No. CR45995)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
