                                                                                        ACCEPTED
                                                                                    03-14-00353-CR
                                                                                            5399510
                                                                         THIRD COURT OF APPEALS
                                                                                    AUSTIN, TEXAS
                                                                               5/22/2015 2:04:08 PM
May 28, 2015                                                                      JEFFREY D. KYLE
                                                                                             CLERK
                        IN THE COURT OF APPEALS

                         FOR THE THIRD SUPREME                    RECEIVED IN
                                                             3rd COURT OF APPEALS
                                                                 AUSTIN, TEXAS
                      JUDICIAL DISTRICT OF TEXAS
                                                             5/22/2015 2:04:08 PM
                                                               JEFFREY D. KYLE
                               AUSTIN, TEXAS                         Clerk



                             NO. 03-14-00353-CR


                          KELLY KITA SHEFFIELD

                                       v.

                           THE STATE OF TEXAS


      Appeal from the 22nd Judicial District Court of Co mal County, Texas
                      Trial Court Cause No. CR2011-475


                    BRiEF ON BEHALF OF APPELLANT,
                        KELLY KITA SHEFFIELD




                                       JOSEPH E. GARCIA III
                                       200 N. Seguin Avenue
                                       New Braunfels, Texas 78130
     OR.<\T. ARGUMF.NT W AIVF.D        TEl.
                                        -   ,-- 627-8868
                                          - OHO) ~-
                                       FAX (830) 627-8683
                                       joeg3@sbcglobal.net
                                       SBN: 07636725
                                       ATTORNEY FOR APPELLANT
                      Identity of Parties and Counsel

       Pursuant to TEX. R. APP. P. 38.1(a)(2011), the parties to this case are

as follows:

       ( 1)   KELLY KITA SHEFFIELD is the Appellant and Defendant in

the trial court.

       (2)    KELLY KITA SHEFFIELD was represented at trial and on

appeal by Joseph E. Garcia, III, Attorney at Law, 200 N. Seguin Avenue,

New Braunfels, TX 78130.

       (3)    The State of Texas was represented by the Coma! County

District Attorney's Office through Assistant Criminal District Attorneys,

Clayten H. Heanell and Ryan V. Vickers, Coma! County Courthouse

Annex, 150 N. Seguin Avenue, Suite 307, New Braunfels, Texas 78130.




                                      11
                             Table of Contents



Identity of Parties and Counsel                                    11.


Table of Contents                                                  111.


Index of Authorities                                               lV, V.


Nature of the Case.                                                1-2

Statement of the Case.                                             3-7

Issues on Appeal. .                                                8

         ISSUE #1: The evidence is legally insufficient to
         support the jury's verdict that the Appellant was
         guilty of evading arrest or detention with a vehicle
         by someone she knew was a law enforcement officer.

Argument and Authorities                                           8-13

         ISSUE #2: The evidence is legally insufficient to
         support the jury's verdict that the Appellant's conduct
         placed her child in imminent danger of death, bodily
         injury, or physical or mental impairment.

Argument and Authorities                                           14-15

Conclusion and Prayer                                              15



Certificate of Compliance.                                         16




                                    111
                                  Index of Authorities



                                             Statutes

Tex. Penal Code, Section 38.04(a) (b)(1)(B) .                     8,9

Tex. Penal Code, Section 22.041(c).                               14

Tex. Penal Code, Section 1.07(36)                                     9

Tex Code of Criminal Procedure, Art. 2.12                         9


                                          State Cases


Brooks v. State, 323 S. W.3d 893 (fex.Crim.App. 201 0)           .8

Devine v. State, 786 S.W.2d 268 (Tex.Crim.App.1989).             16

Duvall v. State, 367 S.W.3d 509 (Tex. App.-Texarkana
                 2005, pet. ref' d).                             11

Garcia v. State, 367 S.W.3d 683 (Tex.Crim.App.2012).             .16

Hobyl v. State, 152 S.W.3d 624 (Tex.App.-Houston [1't Dist.] ·
                2004), pet. dism'd, improvidently granted, 193
                S.W.3d 903 (Tex.Crim.App.2006) .                 . 9

Jackson v. Virginia, 443 U.S. 307,319,99 S.Ct. 2781,
                    L:1 T   D...l ....,...l t:.C.A 110"70\
                    U.l L.LU . .:::..U JVV \ 1 7 / 7 )•      .




l'vfalik v. State, 953 S.\·V.2d 234 (Tex.Crim.App. 1997).         15

Millslagle v. State, 81 S.W.3d 895 (Tex.App.-Austin
                     2002, pet. ref d).                          16




                                                  iv
Redwine v. State, 305 S.W.3d 360 (Tex.App.-Houston [14th
                  Dist.] 2010, pet. ref d)                  10

Rodriguez v. State, 779 S.W.2d 301 (Tex.Crim. App. 1990).   9




                                   v
                                    NATURE OF THE CASE

          Appellant was indicted on September 14, 2011 for the felony offenses (1)

tampering with physical evidence; (2) evading arrest with a vehicle; and (3)

endangering a child.

          On March 3, 2014, this case was called for trial, all parties announced ready,

and a jury was empaneled and selected. After both parties presented their cases in

chief the case was submitted to the jury on March 5, 2014. After deliberation the

jury returned a verdict finding Appellant not guilty of the offense of tampering

with physical evidence but guilty of evading arrest or detention with a vehicle and

endangering a child.

          Thereafter a punishment hearing was held on May 21, 20 14 wherein

Appellant's punishment on the evading charge was assessed at 2 years in years in a

state felony facility, probated for 5 years and a fine of $1,500; 100 hours of

community service restitution; plus other terms and conditions of probation

deemed appropriate and approved by the Court. Punishment on the endangering

charge was assessed at 2 years in a state jail facility, probated for 5 years and a fine
 rom ..   ~nr.   ....... ,..,   •   r-     •,       •   ,•,   ,•   1   ,1_   ,_   .    1
or :t>l,:>vv; 1vv nours or communny serv1ce resmunon; piUs omer terms ana

conditions of probation deemed appropriate and approved by the Court. Both

sentences as well as the terms and conditions of probation were ordered to run

concurrently. (R.R. Vol5, p. 61).



                                                1
      Appellant filed her notice of appeal on June 2, 2014.

      This appeal challenges the sufficiency of the evidence to support the jury's

guilty verdicts for the offenses of evading arrest or detention with a vehicle and

endangering a child.




                                        2
                                   STATEMENT OF THE CASE

           On March 17, 2011, two Child Protective Services (hereinafter referred to

as "CPS") investigators went to the Appellant's home to speak with the Appellant

and to serve her with documents that purported to be court orders authorizing the

removal of Appellant's two minor children from Appellant's home.                                                                CPS

Investigator, Gina Bushey, testified that she also requested law enforcement

"stand-by" presence in the event that the removal process deteriorated into threats,

violence, or both. Ms. Bushey testified that the "stand-by" request was a standard

procedure and request when removal of children is involved and CPS and the local

police department and sheriffs office have working agreements relating to this

process.

       On this day, New Braunfels Police Department Det. David Cantu was

assigned to accompany the CPS investigators and stand-by in the event his

presence and participation was needed. The testimony of the CPS investigators

and Det. Cantu indicated that the detective was in plain clothes, i.e. a blue polo

shirt with a New Braunfels Police Department insignia on the chest, khaki pants,
   1
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                                                                                                 pgs. <-to-<-t::t; ex: o.J-o'-t.0   II




Further, the testimony of the CPS investigators and the detective in<;licated that the

detective was driving an unmarked, white pickup truck with an unmarked, white




                                                    3
camper shell covering the bed of the truck.      (R.R. Vol. 3, pgs. 50-51; 83-85;

Exhibit 42@ 3:49:30-3:50:35).

        After arriving at the Appellant's apartment, Investigator Bushey testified

that she spoke with Appellant on the phone but the Appellant allegedly told the

investigator that she (Appellant) was at work and not at home. Bushey testified

that she believed that Appellant's vehicle was in the apartment parking area and

while standing at Appellant's porch the investigator believed she could hear

someone moving around inside the apartment. (R.R. Vol. 3, pgs. 17-21).

        Bushey testified that when the Appellant said she was working m San

Antonio, Bushey called San Antonio Police Department to conduct a "welfare

check" of the business location where Appellant had allegedly indicated she was

working. During this time, Bushey testified that she and Appellant continued to

have phone contact and Bushey testified that she told Appellant the reason for the

visit including that Bushey possessed a court order for removal of the children in

Appellant's possession.     Bushey estimated that this process · went on for

approximately one hour. (R.R. Vol. 3, pgs. 21-25). More importantly, during this




visual or verbal contact with Appellant. (R.R. Vol. 3, pgs. 52, 68, 85, 87, 109,

110).



                                        4
       At some point Bushey determined that she would contact the management of

the apartments to seek entry into Appellant's apartment. While both investigators

and the detective were speaking with the apartment maintenance man, Bushey

noticed a vehicle that she believed was Appellant's vehicle drive out of the

apartment complex. Unable to see whether any children were in the vehicle, the

investigators gave chase with the detective behind them. (R.R. Vol. 3, pgs. 27-34).

During this pursuit, Bushey described the route that Appellant drove, the estimated

speed of Appellant's vehicle and the alleged evasive action that Appellant took to

make aU-tum to drive back to her apartment. (R.R. Vol. 3, pgs. 29-38).

      When Appellant re-entered the apmiment complex more police back-up was

present and after Appellant parked her vehicle, Bushey eventually approached

Appellant, who by now was in custody, and took pictures of Appellant's child who

was properly seat-belted in the back seat and visibly happy and healthy looking.

(R.R. Vol. 3, pgs. 62-65).

      Det. Cantu testified that while the vehicle he was driving on this date had no

markings whatsoever to identify it as a law enforcement vehicle, it did have

eniergency lights in the grille and on the back of the camper shell. (R.R. Vol. 3,

pg. 84; Exhibit 42). And w·hiie Cantu testified that he wore his department issued

ID badge around his neck during this incident, he did not appear to have his ID

badge around his neck when he exited his vehicle to approach the Appellant when



                                         5
she parked her vehicle upon return to the apartment complex.         (Exhibit 42 @

3:50:40). Det. Cantu testified that as he followed the CPS investigators who were

following the Appellant's vehicle, he only came close enough to see Appellant in

her vehicle for a split second while she made a U-tum. He then he turned his

vehicle's emergency lights on as well as the vehicle siren, and he allegedly had his

ID badge around his neck. (R.R. Vol. 3, pg. 92). From that moment on Appellant

was driving back to the apartment complex with the detective behind her. Det.

Cantu testified that there was no speeding by Appellant going away from the

apartment complex or returning to the complex, nor any real evasive action by

Appellant. Nor could the detective see whether Appellant did or did not stop at a

stop sign after her U-turn and before entering the major roadway on the return to

the apartment complex. (R.R. Vol. 3, pgs. 113-118).

      On cross-examination, the detective testified that police department policy in

effect at the time required that unmarked police vehicles should call in marked

units to make stops and arrests and that while he called in for a marked unit or

units to respond to this incident he was intent on making a stop of Appellant. (R.R.

VoL 3, pgs. 124-126). DeL Cantu further testified that upon the retun1 to the

apartment . complex another police department unit was present, although a

"stealth" unit" bearing markings that are not readily apparent or visible on first

glance.   (R.R. Vol. 3, pg. 153). Cantu followed the Appellant's unit into the



                                         6
parking lot with the "stealth" unit behind them. The "stealth" unit driver used his

in-car loudspeaker to order Appellant to stop which she did within seconds of that

order and when she was approached on the driver's side by Det. Cantu in plain

clothes, without his ID badge, and on the passenger side by the uniformed officer

she opened her vehicle doors in compliance with the uniformed officer's

commands. (Exhibit 42@ 3:50:50-3:51:14). In response to the first questions by

the officers as they took Appellant out of the vehicle, Appellant told them that she

did not know that the white truck or the person in it was a law enforcement or

peace officer. (R.R. Exhibit 42@ 3:52:47-51).




                                        7
      Issue #1: The evidence is legally insufficient to support the jury's
                verdict that the Appellant was evading the arrest or
                detention by a person she knew was a law enforcement officer

                           ARGUMENT AND AUTHORITIES


    In challenging the legal sufficiency of the evidence to support a verdict of

guilty to an indicted offense, the appellate court will review the evidence in the

light most favorable to the verdict or finding of the jury to determine whether a

rational trier of fact could have found the essential elements of the charged offense

beyond      a    reasonable    doubt.         Brooks   v.   State,   323   S.W.3d   893

(Tex.Crim.App.2010); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979).

   Texas Penal Code Sec. 38.04.             EVADING ARREST OR DETENTION

provides:

                (a)   A person commits an offense if he intentionally flees from a

                       person he knows is a peace officer or federal special

                       investigator attempting lawfully to arrest or detain him.

                (b)   An offense under this section is a Class A misdemeanor, except

                       that the offense is:

                       ( 1) A state jail felony if:




                                               8
                                (B) the actor uses a vehicle or watercraft while the actor is in

                                flight and the actor has not been previously convicted under

                               this section.

Texas Penal Code Sec. 1.07. DEFINITIONS provides:

        In this code:

        (36) "Peace officer" means a person elected, employed, or appointed as a

             peace officer under Article 2.12, Code of Criminal Procedure, Section

             51.212 or 51.214, Education Code, or other law.

Texas Code of Criminal Procedure Art. 2.12. WHO ARE PEACE OFFICERS,

provides in relevant pati as follows:

        (3)marshals or police officers of an incorporated city, town, or village, and

those reserve municipal police officers who hold a permanent peace officer license

issued under Chapter 1701, Occupation Code.

       A defendant's knowledge that a peace officer is trying to arrest or detain her

is an essential element of the offense of evading arrest. Rodriguez v. State, 779

S.W.2d 301, 302 (Tex.Crim.App. 1990); Hobyl v. State, 152 S.W.3d 624, 627

(Tex.App.-Houston [1st Dist] 2004), pet. disnt"d, irnprovidently granted, 193

S , "'
    VV. 3-'
         U ""3
            7V   ''T'~x
                 \1      "··'··1 A·-·-'"'"'"'')
                                  }JjJ . .L.VVU ,
                    C: .\.....1111.




       In this case the testimony is clear, direct, and uncontroverted that (1) prior to

the time that Appellant returned, in her vehicle, to her apartment complex and was



                                                    9
confronted by a uniformed police officer, she had never come into contact with

Det. Cantu; (2) Det. Cantu was in plain clothes and driving a completely

unmarked, white pickup truck with a completely unmarked, white camper shell;

and (3) despite Det. Cantu's testimony to the contrary, the video evidence indicates

that he was not wearing his police department issued ID badge around his neck

when he exited his truck at the apartment complex.

      Furthermore, immediately after Appellant was taken from her vehicle by the

arresting officers her first "res gestae" comment to the officers was that she did not

know that the person in the white truck was a police officer.

      Likewise, when a marked, though "stealth" police unit, followed Appellant

and Det. Cantu into the apartment complex parking area and commanded

Appellant to stop or pull over and indicated that it was a New Braunfels police

officer making the command, she did just that.

      In Redwine v. State, 305 S.W. 360, (Tex.App.-Houston [141h Dist.] 2010,

pet. ref'd., Redwine was driving on a county road when he met a police car going

in the opposite direction. Because the officers believed that Redwine was driving

"too near the center of the undivided road", the officers tun1ed around to follow

hin1 but they did not activate their lights or siren. tv1r. Redwine ntade a vvritten

statement indicating that he wanted to avoid contact with the officers because he

had a suspended drivers license. The officers found Redwine's unoccupied vehicle



                                         10
and after shouting "Sheriff', Mr. Redwine eventually walked out of a nearby forest

whereupon he was arrested for evading arrest. At trial Redwine was found guilty

of evading arrest or detention with a vehicle and he appealed that verdict on the

basis that the police made no show of authority until after he had already exited his

vehicle and therefore the evidence was legally insufficient to prove that he knew,

while in his vehicle, that police were attempting to arrest or detain him. The State

argued that Redwine's written statement about avoiding contact with the police

attested to his knowledge of the police pursuit.

      The Redwine appeals court's analysis was that Redwine's statement that he

was trying to avoid contact with the police was not evidence that he was trying to

evade arrest. "The gravamen of the offense is the evasion of an arrest, not the

evasion of a police officer." Duvall v. State, 367 S.W.3d 509, (Tex.App.-

Texarkana 2012), pet. refd. 2012, citing Jackson v. State, 718 S.W.2d 724, 726

(Tex.Crim.App. 1986). The appeals court reasoned that the testimony regarding

the show of authority was akin to the evidentiary sufficiency standards for

identification testimony. The court wrote that courts have consistently held that an

uncertain in-court identification of an accused as the perpetrator of a crime,

standing alone, is insufficient to support a guilty verdict. In Redwine, one of the

officers' "hesitant and admittedly unsure testimony was the only evidence

suggesting that Redwine, while in his vehicle, failed to yield to a possible show of



                                         II
authority by law enforcement.      In the absence of other evidence, the Redwine

appeals court noted, the jury could not translate the police officer's uncertain

testimony into belief beyond a reasonable doubt. Redwine v. State, at 368.

       In the instant case, Appellant contends that while the detective made what he

believed to be a show of authority by engaging the lights in the grille of his

unmarked vehicle and a siren, there was no clear, reasonable, or apparent

indication that the person doing these things was a peace officer intent on arresting

or detaining the Appellant. More to the point, the video evidence showing the

events at the precise time that Appellant parked her vehicle at the apartment

complex indicates that Det. Cantu's clothing and vehicle revealed a distinctly un-

police-like show of authority. Unlike Redwine where there was no use of lights

and siren but there was clear evidence that a marked police vehicle with uniformed

officers were part of the incident in question, here there was the use of lights and a

siren but no marked police vehicle nor uniformed peace officer to evidence the

show of authority referred to and relied upon in the Redwine analysis. For those

reasons it is entirely understandable that the Appellant did not recognize the white,

unmarked pickup lruck wilh lhe unmarked, white camper shell driven by a person

in a blue polo shirt with khaki pants as a peace officer and a police vehicle until

well after being taken into custody at the scene. Coupled with the fact that the car

directly behind and following the Appellant's vehicle from the apartment complex



                                         12
was also unmarked and civilian looking and occupied by two females who in tum

are followed by the aforementioned white, unmarked pickup truck with the white,

unmarked camper shell driven by a civilian appearing person argues for the

conclusion that the Appellant did not know that a peace officer was involved in

this incident.

       For the above stated reasons, Appellant requests this Court to find that the

evidence in this cause is legally insufficient to support the jury's verdict that the

Appellant was guilty of evading arrest or detention with a motor vehicle.




                                          13
                    Issue #2: The evidence is legally insufficient to
                              support the jury's verdict that Appellant
                              is guilty of endangering a child by using a
                              vehicle to evade arrest while the child was
                              inside the vehicle.

                               ARGUMENT AND AUTHORITIES

       Count III of the indictment in this cause alleged in relevant part as follows:

..... on or about the 1th day of March, 2011, KELLY KITA SHEFFIELD, hereinafter

styled Defendant, did then and there, intentionally, knowingly, recklessly, or with

criminal negligence, by act or omission, engage in conduct that placed Lexi Sheffield, a

child younger than 15 years, in imminent danger of death, bodily injury, or physical or

mental impairment, to-wit: using a vehicle to evade arrest while the said Lexi Sheffield

was inside the vehicle.

Texas Penal Code Sec. 22.041. ABANDONING OR ENDANGERING CHILD
provides:

© A person commits an offense 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.

      To the penal code provision of22.041, the state's indictment added as an

essential elernent of its case that the Appellant con1111ited the alleged offense by evading

arrest with a vehicle while her child was in said vehicle.

      In addressing this issue, Appellant relies on the arguments and authorities set out

under Issue No. 1 in this brieffor the proposition that she did not evade an arrest or



                                          14
detention with a vehicle as well as the following arguments and authorities in support

of her position that the evidence is legally insufficient to support the jury's guilty

verdict on the count of the indictment alleging endangering a child.

         Evidence is insufficient to uphold a conviction when the record contains no

evidence or merely a "modicum" of evidence, probative of an element of the offense.

Jackson v. Virginia, 443 U.S. at 320, 99 S.Ct. 2781 ("A 'modicum' of evidence

[cannot] by itself rationally support a conviction beyond a reasonable doubt.")

Sufficiency of the evidence should be measured by the elements of the offense as

defined by the hypothetically correct jury charge for the case. Malik v. State, 953

S.W.2d 234, 240 (Tex.Crim.App. 1997).

         CPS Investigator Bushey testified that when she saw Appellant's child in the

vehicle after Appellant parked her vehicle in the apartment parking area, the child was

"ok and appropriately fastened in her car seat" and that the investigator had no

concerns for the child and there was no actual injury to the child. (R.R. Vol. 3, p. 42,

lis. 19-25; p. 43, I. 1; p. 62, lis. 5-7; p. 65, lis. 6-25; p. 67, lis. 17-25 and p. 67). In

addition, Det. Cantu testified that the Appellant was not speeding as he followed her on

the   vv~ay   back to the apartments, (R.R. Vol. 3, p. 113, lls. 4-14), though he did suggest

that Appellant was speeding when she drove away from the apartment's even as he

indicated that he was following the CPS investigators who were following the

Appellant and he could not state the speed of any of their vehicles. (R.R. Vol. 3, p.



                                               15
 113, I. 25; p. 114, lis. 1-15). Cantu also testified that Appellant drove according to

traffic conditions and not erratically. (R.R. Vol. 3, p.115). Thus, despite the efforts of

Bushey and Cantu to suggest that the Appellant's child was endangered by being in

Appellant's vehicle on that date, the objective evidence before the jury was that the

Appellant's child was not in imminent danger of death, bodily injury, or physical or

impairment as defined by our courts. Devine v. State, 786 S.W.2d 268, 270

(Tex.Crim.App.1989); Mil/slagle v. State, 81 S.W.3d 895, 898 (Tex.App.-Austin 2002,

pet. refd).

      Based on the totality of the record developed at trial, Appellant urges that the

evidence is insufficient to support the jury's verdict that Appellant's actions on March

17, 2011 placed her child in imminent danger of death, bodily, or physical or mental

impairment by using a motor vehicle to evade arrest. Garcia v. State, 367 S.W.3d 683

(Tex.Crim.App. 2012).

      For the foregoing reasons, Appellant urges and requests that this Court find that

the evidence in this cause is legally insufficient to support the jury's verdict that the

Appellant was guilty of endangering her child by evading an arrest with a vehicle as




                                           16
                                Conclusion and Prayer

       For all of the above stated reasons, Appellant urges and requests this Court to

find that the evidence is legally insufficient to support the jury's verdict finding the

Appellant guilty of the offenses of evading arrest or detention with a motor vehicle and

endangering a child.

       WHEREFORE PREMISES CONSIDERED, Appellant prays that this Honorable

Court grant this appeal and reverse the jury verdict and render a judgment of acquittal

in this cause.

                                       Respectfully submitted,


                                      Jose 11 E. Garcia, III
                                            . Seguin Avenue
                                      New Braunfels, Texas 78130
                                      TEL (830) 627-8868
                                      FAX (830) 627-8683
                                      Bar No. 07636725
                                      joeg3 @sbcglobal.net
                                      ATTORNEY FOR APPELLANT

                                 Certificate of Service

      I certify that on the 21st day of May, 2015, a true and cmrect copy of the above



served upon the Coma! County District i\.ttorney's Office by electronic delivery.




                                         17
                     CERTIFICATE OF COMPLIANCE

   I 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.




                                      18
