                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-17-00027-CR


COLIN LANE CROSBY                                                       APPELLANT

                                          V.

THE STATE OF TEXAS                                                            STATE


                                       ----------

          FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY
                      TRIAL COURT NO. 57,038-C

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                         MEMORANDUM OPINION 1

                                       ----------

      A jury convicted appellant Colin Lane Crosby of evading arrest or detention

with a vehicle and assessed his punishment at six years in the penitentiary, and

the trial court sentenced Crosby accordingly. In three points, Crosby asserts that

(1) the trial court erred when it failed to strike for cause venire members who took

an absolute position on the credibility of police officers as witnesses, (2) the trial


      1
       See Tex. R. App. P. 47.4.
court erred by preventing him from presenting a defensive theory, and (3) the trial

court erred by not instructing the jury on the lesser-included offense of fleeing an

officer with a motor vehicle. We affirm.

                                     Evidence

      Officer Ruddy Hutson observed Crosby driving 66 miles per hour in a 60-

miles-per-hour zone—a speeding violation. Officer Hutson followed Crosby and

turned on his overhead lights to initiate a traffic stop. Crosby continued to speed,

so Officer Hutson activated his siren several times but to no avail; Crosby drove

past nine different well-lit locations where he could have safely stopped his car.

      Eventually Crosby pulled into a Sleepwell Motel parking lot and parked.

When Officer Hutson instructed Crosby to get out of his car, Crosby feigned that

he could not because his car door was broken. So Officer Huston turned his

attention to the passenger in Crosby’s vehicle and told Crosby to stay in his car,

but once Officer Hutson attended to the passenger, Crosby got out and went to a

motel-room door. The door, however, was locked. Although initially recalcitrant,

Crosby eventually complied with Officer Hutson’s orders and was arrested.

   The trial court did not abuse its discretion by not striking three venire
                             members for cause

      In his first point, Crosby argues that the trial court abused its discretion

when it failed to strike for cause three venire members—Glass, Vines, and

Forrester—who, according to Crosby, took an absolute position on police officers’

credibility as witnesses. We disagree.



                                           2
                                Standard of review

      When reviewing a trial court’s decision to deny a challenge for cause, we

review the entire record to see if sufficient evidence supports the ruling. Davis v.

State, 329 S.W.3d 798, 807 (Tex. Crim. App. 2010), cert. denied, 565 U.S.

830 (2011). Because the trial court is in the best position to evaluate the venire

members’ demeanor, we review a trial court’s challenge-for-cause decisions for a

clear abuse of discretion. Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App.

1992), cert. denied, 509 U.S. 926 (1993); Fierro v. State, 969 S.W.2d 51,

57 (Tex. App.—Austin 1998, no pet.). A trial court abuses its discretion when its

decision is so clearly wrong as to lie outside the zone of reasonable

disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.

1990) (op. on reh’g). Further, when the venire member’s answers are vacillating,

unclear or contradictory, we give trial courts particular deference because they

are able to consider important factors—such as demeanor and tone of voice—

that a cold record does not reveal. King v. State, 29 S.W.3d 556, 568 (Tex. Crim.

App. 2000); Banda v. State, 890 S.W.2d 42, 54 (Tex. Crim. App. 1994), cert.

denied, 515 U.S. 1105 (1995).

      A party may challenge venire members for cause if they have a bias in

favor of or a prejudice against the defendant. Tex. Code Crim. Pro. art.

35.16(a)(9) (West 2006). Venire members are challengeable for cause if they

cannot impartially judge witnesses’ credibility, which means only that they must

be open-minded and persuadable, “with no extreme or absolute positions


                                         3
regarding the credibility of any witness.” Ladd v. State, 3 S.W.3d 547, 560 (Tex.

Crim. App. 1999) (citing Jones v. State, 982 S.W.2d 386, 389 (Tex. Crim. App.

1998), cert. denied, 528 U.S. 985 (1999)), cert. denied, 529 U.S. 1070 (2000).

Given that “‘complete impartiality cannot be realized as long as human beings

are called upon to be jurors[,]’” venire members cannot be challenged for cause

“simply because they would give certain classes of witnesses a slight edge in

terms of credibility.” Id. (quoting Jones, 982 S.W.2d at 389).

                                    Discussion

      Crosby focuses strictly on defense counsel’s voir dire. But the record

shows that both the prosecutor and defense counsel extensively addressed the

topic of police officers as witnesses. We first present the prosecutor’s voir dire:

      [PROSECUTOR]: [N]o one’s asking you to check your common
      sense at the door. I think Ms. Boyd did a really good job of
      explaining some things that she’d look for as far as demeanor goes
      and determining whether or not somebody is deserving of credibility.

             And along those same lines, there may be a police officer or
      two who testifies as witnesses. And the fact is, you must evaluate a
      police officer’s credibility the same way as you would all other
      witnesses. Now, once a police officer gets on the stand and begins
      to testify, then you can start to take into account their training and
      experience, but we ask that you not prejudge the officers ahead of
      time. And I’ll go ahead and spend a little bit of time on this question
      because it’s one that I’ve encountered some difficulty with. And I
      would just like to state that there’s a difference between respecting
      an officer’s authority out on the street and then agreeing not to
      prejudge them as being inherently more credible or truthful when
      they testify. Does that make more sense to everyone?

            You can still respect the officer’s badge when you’re out on
      the street while also agreeing not to prejudge them as being
      inherently more truthful or credible when they testify on the witness


                                          4
stand. All that we ask is that you withhold judgment on their
credibility until you hear them begin to testify. And I—I think that’s—
that’s a fair statement.

      Mr. Buchanan, if you would go ahead and stand up. Would
you agree—would you agree w[ith] me that it’s better to hear
somebody’s story first before you decide whether or not you want to
believe them?

VENIREMAN BUCHANAN: Yes.

[PROSECUTOR]: And that’s sort of the same concept that I’m
asking y’all to apply here is just wait until you hear an officer’s story
before deciding to judge them as more credible or potentially less
credible. Thank you, sir.

      So with that in mind, Mr. Sterling, would you be able to agree
to evaluate an officer’s credibility the same way that you would any
other witness?

VENIREMAN STERLING: Yes.

[PROSECUTOR]: Okay. So you would agree not to prejudge them
as being inherently more credible or less credible?

VENIREMAN STERLING: Uh-huh.

[PROSECUTOR]: All right. Everybody else on the first row? All right.
How about the second row, would you be able to hold officers to the
same standard as—as every other witness and wait and hear what
they have to say before you decide whether or not to believe them?
And how about on the third row? Can we all agree to not prejudge
an officer’s credibility or lack thereof before they testify? Does that
apply to you as well, Mr. Fondren?

VENIREMAN FONDREN: Yes, sir.

[PROSECUTOR]: And you too, Mr. Penney?

VENIREMAN PENNEY: Yes.

[PROSECUTOR]: And without naming names, would it be fair say
that you’ve experienced your share of interactions with good cops,
bad cops, sloppy cops?


                                   5
VENIREMAN PENNEY: Yes, sir.

[PROSECUTOR]: Okay. And you’ve kind of—they come in all
stages, fair to say?

VENIREMAN PENNEY: Fair.

[PROSECUTOR]: Okay. And how about on the fourth row? Is there
anybody who would inherently consider a police officer to be more
truthful just by nature of the fact that they have a badge? Okay. I’ll
go over to the left side here, first row. Same question to y’all, can
everybody here agree to start off a police officer with the same level
of credibility as they would any other witness? I’ll go ahead and—
second row on the left side, everybody can agree to that as well? All
right. The third row, Mr. Townsend?

VENIREMAN TOWNSEND: Yes, sir.

[PROSECUTOR]: You will be our guinea pig. Would you be able to
agree to that as well?

VENIREMAN TOWNSEND: Sure, absolutely.

[PROSECUTOR]: Everybody else on the third row too? All right. And
how about on the fourth row? Is everybody on the fourth row able to
agree not to prejudge an officer’s credibility level prior to them
testifying? All right.

        So I guess by that same token, is there anybody here who
through whatever experiences or actions they or their families may
have that would have an inherently negative view of a police officer?
So I’ll kind of flip the situation, somebody who says, you know what,
just by the nature of them being police officers, I kind of think they’re
less credible than any other witnesses? Are there anybody out—is
there anybody out there like that? And again, if that happens to be
you, you can go ahead, this is your time, just stand up and say it.
Nobody’s going to be judging you for that because like I said we’re
here just asking you to be honest in all of the questions that we put
to you.

       Is there anybody here who had or has a family member or
close friend that’s had a negative experience with the District
Attorney’s Office? I don’t think I see any hands. Okay. So that covers
police officers as potential witnesses.


                                   6
We see from the prosecutor’s voir dire that he set out what the law expected of

jurors when evaluating police officers. We also see that Glass, Vines, and

Forrester did not speak up to express any disagreement with those expectations.

      When it was defense counsel’s turn, however, Glass, Vines, and Forrester

acknowledged that they would start an officer out with a “little bit more” credibility.

Defense counsel’s voir dire went as follows:

      [DEFENSE COUNSEL]: Thank you, Your Honor. All right. Let’s
      move on down the list. So [the prosecutor] touched on this earlier,
      but the law says that you have to start every witness off at the
      same—with the same level of credibility, basically regardless of
      whether or not they wear a uniform, okay? Before they get on the
      stand, you have to start them off at the same level of credibility, so
      I’m going to ask a few of you this. Would you agree or disagree with
      this statement? I put it up there on the board so you could see it. I
      would stop—start an officer off with a little bit more credibility just
      because they are a police officer. And I’m going to ask whether you
      disagree or agree with this statement. Does anybody have any
      question about the statement—that statement that I’m asking you
      about just so there’s no confusion? Okay. We’ll start with Ms. Chapa,
      right?

      VENIREMAN CHAPA: Uh-huh.

      [DEFENSE COUNSEL]: Okay. Would you agree or disagree with
      that statement?

      VENIREMAN CHAPA: Disagree.

      [DEFENSE COUNSEL]: Okay. Mr. Glass, would you agree or
      disagree with that statement?

      VENIREMAN GLASS: Agree.

      [DEFENSE COUNSEL]: Agree with the statement? And you
      understand this is before—that the officer testifies and you would be
      instructed that—

      VENIREMAN GLASS: Yeah.


                                          7
[DEFENSE COUNSEL]: —and you would be instructed that you
can’t -- just because somebody wears a uniform, you have to start all
officers off at the same level of credibility?

VENIREMAN GLASS: Yes.

[DEFENSE COUNSEL]: You’d still say that you agree?

VENIREMAN GLASS: Yeah, just because I know some law
enforcement people that—I know that doesn’t—

[DEFENSE COUNSEL]: Okay.

VENIREMAN GLASS: —go with everybody, but that’s just my
opinion.

[DEFENSE COUNSEL]: Yeah. And don’t let—and that’s exactly—
that’s a great answer in—in that, you know, if you feel like this is—
well, let me ask you and don’t let me put words in your mouth, so
correct me here if I misstate it, but you couldn’t sit your feelings
aside, if an officer testified, you’d start them off with a little bit more
credibility, you could not set that feeling aside even if instructed by
the Judge to?

VENIREMAN GLASS: Well, yeah, but you’re asking me a question
and I’m telling you that I agree with that statement.

[DEFENSE COUNSEL]: Okay. So all right. So how about this: If you
were in—would—would your feelings—you said you know some
police officers.

VENIREMAN GLASS: Yeah.

[DEFENSE COUNSEL]: And you like them and you think they’re
trustworthy folks, the ones you know, right?

VENIREMAN GLASS: Yeah.

[DEFENSE COUNSEL]: And would that influence your decision even
a little bit before—and you don’t know—and let me correct myself.
You don’t know any of the police officers?

VENIREMAN GLASS: I don’t know any of the ones [that are] listed,
no.


                                    8
[DEFENSE COUNSEL]: All right. And—and would that at all
influence your decision as to whether or not to trust them?

VENIREMAN GLASS: No.

[DEFENSE COUNSEL]: Okay. All right. Does anybody—does
anybody else agree with this statement? Does anybody agree with
this statement? Ms. Wood? Thank you. Anybody else agree on the
right side with the statement? Okay. Mr. Vines, is it?

VENIREMAN VINES: Yes.

[DEFENSE COUNSEL]: Would you say you would start an officer off
with a little bit more credibility simply because they’re a police officer
and for no other reason before they testify?

VENIREMAN VINES: Yes.

[DEFENSE COUNSEL]: Okay. Ms. Forrester?

VENIREMAN FORRESTER: Yes.

[DEFENSE COUNSEL]: Would—even though the Court’s going to
instruct you just because somebody wears a uniform that you can’t
give them any more credibility, you would say that based on your
personal experience, you would start an officer off with a little bit
more credibility just because they’re a police officer?

VENIREMAN FORRESTER: Yes.

[DEFENSE COUNSEL]: Okay. Thank [you], Ms. Forrester. Anybody
else on the right side? All right. Ms. Burns, right?

VENIREMAN BURNS: Yes.

[DEFENSE COUNSEL]: Ms. Burns, would you stand since you’re
not on the front row? Thank you. The same question. Based on your
personal experience, would you start an officer off with a little bit
more credibility just because they are a police officer even though
the Court’s going to tell you that you can’t use their uniform as
evidence of credibility?

VENIREMAN BURNS: Yes.




                                    9
      [DEFENSE COUNSEL]: Okay. And thank you. And Mr. Dickerson,
      same question?

      VENIREMAN DICKERSON: Yes, sir. I agree.

      [DEFENSE COUNSEL]: Okay. Thank you. I appreciate your
      honesty. Anybody else on the right side? Okay. Ms. . . . Jackson in
      the back, Ms. Jackson?

      VENIREMAN JACKSON: I agree because I was raised with two
      police officers in my home.

      [DEFENSE COUNSEL]: All right. Okay. So you would say that you
      would not—you would start an officer off with a little bit more
      credibility just because they’re a police officer?

      VENIREMAN JACKSON: (Moving head up and down.)

      [DEFENSE COUNSEL]: Thank you. I appreciate your honesty.
      Anybody else on the back row? Okay. I’m going to ask it again.
      Anyone else on the left side agree with that statement? Okay. Thank
      y’all for your honesty. I appreciate it. All right.

      Venire members are not challengeable for cause because they would tend

to believe a police officer or a doctor “slightly more” than others. Ladd, 3 S.W.3d

at 560. Rather, venire members are challengeable for cause under article

35.16(a)(9) if they cannot impartially judge witnesses’ credibility, the flip side of

which means only that they must be open-minded, persuadable, and have no

extreme or absolute position regarding any witness’s credibility. Tex. Code Crim.

Proc. Ann. art. 35.16(a)(9); Ladd, 3 S.W.3d at 560.

      We see no legally significant distinction between the “slightly more” in Ladd

and the “little bit more” that was articulated in this case.

      Crosby also contends that Ladd is factually distinguishable because the

venire member there stated that he would tend to believe police officers and


                                          10
doctors if they were testifying about matters within their expertise; he also stated

that he would not automatically believe police officers and doctors and would

listen to all the evidence before making up his mind about the facts. Id. at 559–

60. We disagree with Crosby’s attempt to distance himself from Ladd’s analysis

and holding.

      By not disagreeing with the prosecutor during his voir dire, Glass, Vines,

and Forrester effectively gave conflicting answers. When venire members give

conflicting answers, we defer to the trial court’s determination. See King,

29 S.W.3d at 568. Additionally, a “little bit more” is not an extreme or absolute

position and simply means that the venire members remain open to having the

evidence persuade them otherwise. See Ladd, 3 S.W.3d at 560.

      We overrule Crosby’s first point.

            Crosby was not prevented from presenting a defense

      Crosby argues in his second point that the trial court erred when it

prevented him from cross-examining Officer Hutson about his motive for charging

Crosby with a felony instead of a misdemeanor and thereby prevented him from

presenting a defensive theory. Specifically, he contends that “[t]he thrust of [his]

offer [of proof] was that the State bound [him] over on a trumped-up felony

charge to seize [his] vehicle for financial gain when the arresting officer himself

testified that [Crosby] committed the misdemeanor offense of fleeing.” Tex. Penal

Code Ann. § 38.04 (West 2016) (evading arrest); Tex. Transp. Code Ann.

§ 545.421 (West 2011) (fleeing an officer). Crosby contends that the seizure laws


                                          11
provided a financial incentive to charge him with a felony instead of a

misdemeanor.

                                 Standard of review

      We review a trial court’s evidentiary rulings for an abuse of discretion. See

Montgomery, 810 S.W.2d at 391. Furthermore, if the ruling is supported under

any legal theory applicable to the case, we will uphold it. See Romero v. State,

800 S.W.2d 539, 543 (Tex. Crim. App. 1990).

      Rulings excluding evidence might rise to a constitutional level in two

distinct instances: (1) when there is a state evidentiary rule that categorically and

arbitrarily prohibits a defendant from offering otherwise relevant evidence, and

(2) when a trial court’s clearly erroneous ruling excluding otherwise relevant,

reliable evidence that forms such a vital portion of the defendant’s case that

excluding it effectively precludes him from presenting a defense. Wiley v. State,

74 S.W.3d 399, 405 (Tex. Crim. App.), cert. denied, 537 U.S. 949 (2002). “In the

first category, the constitutional infirmity is in the arbitrary rule of evidence itself.”

Id. “In the second category, the rule itself is appropriate, but the trial court

erroneously applies the rule to exclude admissible evidence to such an extent

that it effectively prevents the defendant from presenting his defensive theory. In

other words, the erroneous ruling goes to the heart of the defense.” Id. (footnote

omitted).




                                           12
                                   Discussion

      Crosby does not argue that any evidentiary rule categorically and arbitrarily

prohibited him from offering relevant evidence, so we focus only on the second

category: Crosby’s argument that the trial court’s erroneous ruling excluded

otherwise relevant, reliable evidence that formed a vital portion of his case and

effectively precluded him from presenting a defense. See id.

      Outside the jury’s presence, Crosby’s counsel argued that the police had

seized Crosby’s vehicle. He was not able to say whether the police had sold it.

But when given an opportunity to present his offer of proof, Crosby’s counsel

limited it to Officer Hutson’s admission that he could have charged Crosby with

the misdemeanor offense of using a motor vehicle to flee or attempt to elude a

police officer under section 545.421 of the transportation code. Crosby’s counsel

went no further.

      He never asked Officer Hutson why he charged Crosby with the felony

instead of with the misdemeanor. He never asked whether Officer Hutson was

familiar with the seizure laws. He never asked whether the police actually seized

Crosby’s car. And he never asked whether the possibility of seizing Crosby’s car

had any bearing on Officer Hutson’s decision to charge him with a felony.

      Because nothing in the offer of proof supports the allegation that Officer

Hutson’s decision to arrest Crosby for the felony was to seize Crosby’s vehicle,

we hold that the trial court did not err. The offer of proof failed to show that

Officer Hutson had an ulterior motive to arrest Crosby for one offense as


                                       13
opposed to the other. The proffered evidence was not relevant and was properly

excluded. Tex. R. Evid. 401, 402. Because Crosby has not shown that the trial

court misapplied the law when excluding the proffered evidence, he cannot show

that he was improperly prevented from presenting a defense. See Wiley,

74 S.W.3d at 405.

      Crosby next contends that after he made his offer of proof, on redirect the

State opened the door to Officer Hutson’s motivation Shortly after Crosby’s offer,

the record shows the following:

      BY [PROSECUTOR]:

      Q. Okay. Officer Hutson, if I could ask you to recall to the best of
      your recollection some of the previous testimony in regard[ ] to what
      defense counsel said, specifically that the Defendant didn’t try to get
      away. Do you recall those statements?

      A. Yes, he didn’t try to get away.

      Q. Okay. Now, after he exited the vehicle, what did the Defendant try
      and do?

      A. He tried to enter a hotel room without—during the felony stop, he
      tried to leave the scene by entering a hotel room.

      Q. Was he continuing to, I guess, evade you at that point?

      A. Yes, sir.

      Q. So it wasn’t until the Defendant realized that the door was locked
      that he eventually came into compliance?

      A. Correct.

      Q. And what would you have to do if the door was unlocked and the
      defendant walked in?

      A. Since this was a felony, we’d have to go in after him.


                                           14
      Q. You would have to continue to pursue him?

      A. Yes.

This line of questioning shows that Crosby fled both in his vehicle and, once he

stopped his vehicle, on foot.

      Moments later, the prosecutor asked Officer Hutson point blank: “[W]hy did

you decide to charge this Defendant with evading in a vehicle?” Officer Hutson

answered:

      Because he failed to stop and he—I felt like he was evading me by
      not stopping, by traveling .7 miles while my sirens and emergency
      lights were going off and also when he exited the vehicle, he tried to
      enter a motel room against officers’ commands when we had him at
      taser and gunpoint.

Crosby contended at trial that this exchange opened the door to questions about

the officer’s motivations for charging the felony instead of the misdemeanor.

      The prosecutor again argued that the misdemeanor was not a lesser-

included offense and so Crosby’s line of questioning was irrelevant. The trial

court sustained the prosecutor’s objection. Because Crosby’s offer of proof

contained nothing showing that Officer Hutson was in any way motivated by the

seizure laws or, for that matter, that the seizure laws even applied, Crosby

cannot show that he was prevented from showing a defense. See id.

      We overrule Crosby’s second point.




                                        15
   Fleeing an officer is not a lesser-included offense of evading arrest or
                                   detention

      In his third point, Crosby maintains that the trial court erred when it failed to

instruct the jury that fleeing is a lesser-included offense of evading arrest in a

motor vehicle. Because binding authority says otherwise, we disagree.

                                Standard of review

      The code of criminal procedure provides that an offense is a lesser-

included offense if “it is established by proof of the same or less than all the facts

required to establish the commission of the offense charged.” Tex. Code Crim.

Proc. Ann. art. 37.09(1) (West 2006).

      The first step of the analysis asks whether the lesser-included offense is

included within the proof necessary to show the charged offense. Hall v. State,

225 S.W.3d 524, 531 (Tex. Crim. App. 2007). This is a question of law and does

not depend on the evidence to be produced at trial. Id. at 535. In Hall, the court of

criminal appeals adopted the cognate-pleadings approach for this step: “the

elements and the facts alleged in the charging instrument are used to find lesser-

included offenses.” Id.

      The court of criminal appeals reaffirmed that principle in Ex parte Watson,

where it explained that an offense is a lesser-included offense of another offense

if the indictment for the greater-inclusive offense either alleges all the elements of

the lesser-included offense or alleges elements plus facts (including descriptive

averments, such as non-statutory manner and means, that are alleged for notice



                                         16
purposes) from which all the lesser-included offense’s elements may be

deduced. 306 S.W.3d 259, 273 (Tex. Crim. App. 2009) (op. on reh’g); see also

Hall, 225 S.W.3d at 535.

      But language from Hall and Watson stating that an element of a lesser-

included offense does not have to be alleged if it can be deduced from the

indictment’s language caused some confusion. Rice v. State, 333 S.W.3d 140,

144 (Tex. Crim. App. 2011). In McKithan v. State, the court aimed to clarify that

language by explaining that it is not to be read too broadly because it was

essentially approving the functional-equivalence concept, which requires courts

to examine the lesser-included offense’s elements and decide whether they are

functionally the same or less than those required to prove the charged offense.

324 S.W.3d 582, 588 (Tex. Crim. App. 2010) (citing Farrakhan v. State,

247 S.W.3d 720, 722-23 (Tex. Crim. App. 2008)); see Rice, 333 S.W.3d at 144–

45.

      The second step requires evaluating the evidence to determine whether

there is some evidence that would permit a rational jury to find that the defendant

committed only the lesser offense and not the greater. Hall, 225 S.W.3d at 536.

The evidence must show that the lesser-included offense is a rational, valid

alternative to the charged offense. Id.

                                    Discussion

      For the offense of evading arrest or detention, the State alleged that

Crosby “did then and there, while using a vehicle, intentionally flee from Ruddy


                                          17
Hutson, a person the defendant knew was a peace officer who was attempting

lawfully to arrest or detain the defendant.” This follows the statutory definition of

evading arrest or detention while using a vehicle: “A person commits an offense if

he intentionally flees from a person he knows is a peace officer . . . attempting

lawfully to arrest or detain him,” and “the actor uses a vehicle . . . while the actor

is in flight . . . .” Tex. Penal Code Ann. § 38.04(a), (b)(1)(B).

       In contrast, for the less-serious offense of fleeing or attempting to elude a

police officer, the transportation code provides: “A person commits an offense if

the person operates a motor vehicle and wilfully fails or refuses to bring the

vehicle to a stop or flees, or attempts to elude, a pursuing police vehicle when

given a visual or audible signal to bring the vehicle to a stop.” Tex. Transp. Code

Ann. § 545.421(a). Subsection (b) further provides, “A signal under this section

that is given by a police officer pursuing a vehicle may be by hand, voice,

emergency light, or siren.” Id. § 545.421(b). It continues, “The officer giving the

signal must be in uniform and prominently display the officer’s badge of office.”

Id. It concludes, “The officer’s vehicle must bear the insignia of a law

enforcement agency, regardless of whether the vehicle displays an emergency

light.” Id.

                                     The first step

       In Farrakhan v. State, the State alleged that the defendant “unlawfully,

intentionally fle[d] from [the officer], . . . a peace officer employed by HOUSTON

POLICE DEPARTMENT, lawfully attempting to DETAIN [the defendant], and [the


                                           18
defendant] knew that [the officer] was a peace officer attempting to DETAIN [the

defendant], and [the defendant] used a motor vehicle while he was in flight.”

263 S.W.3d 124, 138 (Tex. App.—Houston [1st Dist.] 2006), aff’d, 247 S.W.3d

720 (Tex. Crim. App. 2008). This is functionally identical to Crosby’s indictment,

that is, it tracks the statutory elements, identifies the officer and the defendant,

and otherwise adds nothing factually. Under these circumstances, the court of

criminal appeals held that fleeing was not a lesser-included offense of evading

detention with a motor vehicle. Farrakhan, 247 S.W.3d at 724. For our purposes,

Farrakhan is controlling. Crosby cannot, therefore, show that fleeing is a lesser-

include offense in his case.

                                 The second step

      Because Crosby did not satisfy the first step, whether he met the second

step is moot, so we need not address it. See Tex. R. App. P. 47.1; Peavy v.

State, 248 S.W.3d 455, 469 (Tex. App.—Austin 2008, pet. ref’d).

                               Additional contention

      Crosby asks us to further modify the first step, but we are bound to follow

higher court authority. See State ex rel. Healey v. McMeans, 884 S.W.2d 772,

774 (Tex. Crim. App. 1994) (courts must follow binding precedent from court of

superior jurisdiction).

      We overrule Crosby’s third point. 2


      2
       The crux of Crosby’s overall complaint is that Officer Hutson could have
arrested him for a misdemeanor, the State similarly could have charged him with

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                                  Conclusion

      Having overruled Crosby’s three points, we affirm the trial court’s

judgment.




                                                 /s/ Elizabeth Kerr
                                                 ELIZABETH KERR
                                                 JUSTICE

PANEL: SUDDERTH, C.J.; GABRIEL and KERR, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 8, 2017




a misdemeanor, the trial court could have submitted the misdemeanor in the jury
charge, and the jury might have, if given the opportunity, convicted him only of
the misdemeanor. But even if Officer Hutson had arrested Crosby for the
misdemeanor, Crosby has not cited us any authority for the proposition that the
prosecutor would have been bound by the arresting officer’s decision; how to
charge a defendant is a question of prosecutorial discretion. See Crutsinger v.
State, 206 S.W.3d 607, 612 (Tex. Crim. App.), cert. denied, 549 U.S.
1098 (2006). A defendant’s history is one factor that prosecutors weigh when
employing their discretion. See id. We note that during the punishment trial, the
State proved that Crosby had two prior state jail felonies and eleven prior
misdemeanor convictions. We are not privy to the reasons the State pursued the
felony and not the misdemeanor, but Crosby’s criminal history potentially played
a factor. In the end, though, and for the reasons stated in this opinion, Crosby
was not entitled to a charge on the misdemeanor as it was neither the charged
offense nor a lesser-included offense of the charged offense.

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