REVERSED and ACQUITTED; and Opinion Filed May 28, 2014.




                                         S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-13-00889-CR

                                ISAAC JOHN RUSSELL, Appellant
                                             V.
                                 THE STATE OF TEXAS, Appellee

                       On Appeal from the County Court at Law No. 6
                                   Collin County, Texas
                           Trial Court Cause No. 006-81954-2013

                             MEMORANDUM OPINION
                        Before Justices Moseley, O’Neill, and FitzGerald
                                   Opinion by Justice O’Neill
       A jury convicted appellant Isaac John Russell of evading arrest and sentenced him to 270

days in county jail. He raises four issues on appeal: (1) the evidence was insufficient to establish

reasonable suspicion to detain him; (2) the evidence was insufficient to establish he knowingly

fled from a peace officer; (3) the trial court abused its discretion by admitting extraneous

offenses; and (4) his counsel was ineffective by failing to file a sworn application for probation.

We conclude appellant’s first issue is dispositive of this appeal. We reverse the conviction and

render judgment of acquittal.
                                                                Background

           The following facts are based on the exclusive trial testimony of Officer Stephen Hayslip

and his interactions with appellant from 2011 to 2013. 1 In November or December of 2011,

Officer Hayslip first came into contact with appellant. Officer Hayslip pulled appellant over for

a traffic violation. Because appellant and his passengers acted nervously, Officer Hayslip asked

to search the car, but appellant refused. A K-9 unit conducted an open-air search of the car and

alerted to possible narcotics. Upon further search of the car, no drugs were found.

           Officer Hayslip later learned that appellant had been arrested for methamphetamine

possession in Collin County, and appellant had an outstanding arrest warrant in Hopkins County.

On March 18, 2012, Officer Hayslip initiated a traffic stop of a vehicle in which appellant was a

passenger. Officer Hayslip arrested appellant based on the confirmed outstanding warrant for

possession of a controlled substance from Hopkins County.

           Appellant made bond on his Hopkins County arrest; however, Officer Hayslip testified a

person from the bail bonds company told him “they were going to forfeit his bond because he

was not keeping to the agreement for what they set forth for his bond. And so, he told me there

was a -- there was an active warrant and had a copy of the warrant.” Officer Hayslip said from

that point forward he was “on the lookout” for appellant. The record does not indicate when

Officer Hayslip received this information from the bonds company.

           On November 27, 2012, Officer Hayslip thought appellant might be a passenger in a car

he recognized as belonging to appellant’s wife. Officer Hayslip testified he conducted a warrant

check and confirmed appellant’s outstanding warrant in Hopkins County. Appellant, however,

was not in the car.



   1
       Officer Hayslip was the only witness to testify during appellant’s trial.



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       Officer Hayslip’s next encounter with appellant occurred on January 23, 2013, which is

the encounter subject to this appeal. Around 7 a.m., Officer Hayslip was driving down State

Highway 78 when he recognized what he thought was appellant’s wife’s car. He made a U-turn

and followed the car to an Exxon station. He ran the license plate and confirmed the car

belonged to appellant’s wife. He testified that “at this point, I’m still believing he has a warrant

for his arrest.” However, he admitted the last time he checked for an active warrant was

November 27, 2012, almost two months earlier.

       Appellant’s wife went inside the store, and at this point, Officer Hayslip had not

identified appellant as the passenger in the car. Officer Hayslip drove by the vehicle slowly. As

Officer Hayslip drove by, he saw appellant in the passenger seat. Appellant did not make any

attempt to get out of his car until after Officer Hayslip passed. Officer Hayslip testified as

follows:

               As I drove by, I was looking in my mirror, and I could see he was
               attempting to exit the vehicle. . . . Because of the fact that he was
               getting out of the vehicle, and under my belief that he had a
               warrant for his arrest, I immediately turned my vehicle around
               because I believed that he was fleeing. So as I turned my vehicle
               around and faced the vehicle, I immediately opened up my door.
               And as I’m exiting my vehicle, I make several loud verbal
               commands for him to stop.

Despite his verbal commands to stop, appellant kept walking towards the gas station entrance.

Officer Hayslip reiterated he thought appellant had an outstanding warrant for his arrest, and

appellant was trying to get away from him.

       Officer Hayslip then ran to the side door, entered the gas station, and again yelled for

appellant to stop. Rather than stop, appellant began to “pick up his pace very heavily towards

the bathroom.” When appellant got to the bathroom, he grabbed the door with both hands and

tried to keep Officer Hayslip out. Officer Hayslip forced his way inside, and he immediately

noticed both of appellant’s hands in his jacket pockets. Concerned that appellant might have a
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weapon, Officer Hayslip pulled his service weapon. While trying to reach for appellant’s hands

and control his wife, who was trying to enter the bathroom, a struggle ensued and Officer

Hayslip’s weapon accidentally discharged. No one was injured.

       Officer Hayslip eventually handcuffed appellant and escorted him out of the store.

Officer Hayslip searched appellant’s wife and recovered a pair of gloves, a methamphetamine

pipe, and a lighter. However, she pulled these items from appellant’s jacket during the bathroom

struggle. When Officer Hayslip searched appellant, he found a bag of methamphetamine.

       At this point, Officer Hayslip said his purpose in detaining appellant “was to initiate the

warrant check to confirm that the warrant was still active.” He testified he was not able to access

the needed information to run the check prior to making contact with appellant. He explained

the police department recently received updated software for the patrol cars and rather than

typing in a person’s first and last name to retrieve an outstanding warrant list, the new system

required a date of birth, which he did not know for appellant. He specifically testified:

               At the time of the new update, they changed the way that we did it.
               And so I was not aware at that time of how they had changed that
               for us to be able to do name and date of birth. So I did not have - -
               I did not have his date of birth at that time with me, so I could not
               run that in the car at that time.

Not until he placed appellant in the back of his vehicle and obtained his birth date did he run a

warrant check and discover appellant had no active warrants. This surprised him “very much.”

       The State charged appellant with evading arrest or detention. The jury found appellant

guilty and sentenced him to 270 days in county jail.

                           Reasonable Suspicion to Detain Appellant

       In his first issue, appellant argues the evidence is legally insufficient to establish Officer

Hayslip’s reasonable suspicion to “lawfully detain” him, as required to support a conviction for

evading arrest or detention. Evidence is insufficient to support a conviction if, considering all


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the evidence in the light most favorable to the verdict, no rational jury could have found that

each essential element of the charged offense was proven beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319 (1979). We presume the fact-finder resolved any conflicts in favor

of the verdict, and we may not reevaluate the weight and credibility of evidence and substitute

our judgment for the jury. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

       A person commits the offense of evading arrest or detention if “he intentionally flees

from a person he knows is a peace officer or federal special investigator attempting lawfully to

arrest or detain him.” TEX. PENAL CODE ANN. § 38.04(a) (West Supp. 2013). The State bears

the burden to prove the lawfulness of the attempted detention. Crawford v. State, 355 S.W.3d

193, 196 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). A detention for the purpose of

investigating possible criminal behavior is lawful where the police officer can point to specific

and articulable facts that, taken together with rational inferences from those facts, reasonably

warrant the intrusion. Id.; see also Terry v. Ohio, 392 U.S. 1, 30 (1968). The facts must amount

to more than a mere hunch, a guess, or a vague suspicion. Canalas v. State, 221 S.W.3d 194,

199 (Tex. App.—Houston [1st Dist.] 2006, no pet.). We review de novo the legal question of

whether the totality of the circumstances is sufficient to support an officer’s reasonable suspicion

to detain a person. Crawford, 355 S.W.3d at 196.

       Appellant argues Officer Hayslip did not have reasonable suspicion to detain him because

he failed to confirm the outstanding warrant, and there was nothing suspicious about his behavior

at the gas station prior to Officer Hayslip exiting his patrol car. The State responds Officer

Hayslip’s knowledge of appellant’s criminal history, coupled with the fact that appellant “began

to flee as soon as he saw [Officer] Hayslip,” indicated criminal activity. The State further

contends Officer Hayslip reasonably relied on “recent confirmation of Appellant’s warrant.” We

cannot agree with the State.

                                                –5–
       Although the State spends most of its time arguing that Officer Hayslip’s prior

knowledge of appellant’s criminal history and appellant’s behavior after exiting the car

supported reasonable suspicion to detain, our analysis begins with Officer Hayslip’s repeated

reason for trying to detain appellant in the first place: his belief appellant had an outstanding

warrant in Hopkins County.

       We agree with the State that an arrest is not invalid merely because an officer relies on

reasonably trustworthy information that later proves to be erroneous. See Brown v. State, 986

S.W.2d 50, 53 (Tex. App.—Dallas 1999, no pet). In fact, a whole body of Fourth Amendment

case law has developed through the years regarding whether the good-faith exception to the

exclusionary rule applies in such situations. See, e.g., Arizona v. Evans, 514 U.S. 1 (1995).

However, those cases involve review of a motion to suppress and an officer who usually first

detained the defendant, then conducted a warrant check, and only later found out the warrant had

been resolved and remained in the system because of some clerical error. Id.; see also Nunnally

v. State, No. 11-03-00237-CR, 2004 WL 292051 (Tex. App.—Eastland Feb. 12, 2004, pet.

ref’d). But see People v. Morgan, 901 N.E.2d 1049 (Ill. App. Ct. 2009) (concluding good faith

exception did not apply when officers knew they were relying on a three-day old warrant list and

made no attempt to verify the defendant’s alleged warrant before approaching his residence).

Neither circumstance is present here.

       Neither side has provided any specific case law to support or negate whether Officer

Hayslip’s reliance on two-month-old warrant information was reasonable and in good faith.

Rather, both merely rely on the general principle of whether “the totality of the circumstances is

sufficient to support an officer’s reasonable suspicion” to detain.

       Although not cited by either party and raised in the context of whether the good faith

exception to the exclusionary rule applied, our research finds People v. Morgan, 901 N.E.2d

                                                –6–
1049 (Ill. App. Ct. 2009) instructive. In that case, the trial court granted defendant’s motion to

suppress based on defendant’s claims that an arrest warrant was invalid, and the officers had no

other valid, lawful reason to enter his home. Id. at 1051. Officers testified at the motion to

suppress hearing that they typically obtained a current warrant list the same day as their visit to

the police department. Id. at 1060. However, they admitted to relying on a three-day-old

warrant list and making not attempts to verify the continued existence of defendant’s warrant

before approaching his home. Id. at 1061. Had they tried to verify defendant’s warrant, they

would have learned it was inactive. Id. The appellate court concluded, “The reliance on the old

warrant list and the failure to check on the continued validity of the warrant constituted, at the

very least, gross negligence, if not reckless or wilful conduct,” which negated the State’s reliance

on the good-faith exception to the exclusionary rule. Id. The court further acknowledged the

following:

               This would be an entirely different case had the officers obtained
               the current warrant list that contained defendant’s name and
               executed it without verifying the warrant. It also would have been
               a different case if the officers had obtained the up-to-three-day-old
               list, called to verify it, and been told that the warrant was valid. . . .
               However, those are not the facts here.

Id. The court noted this was the type of “reckless disregard” the Supreme Court would believe

justified excluding evidence. Id. at 1062. Thus, the court upheld the trial court’s judgment.

       Based on the facts of this case, we cannot agree with the State that Officer Hayslip

“relied on recent confirmation of Appellant’s warrant, and therefore had reasonable suspicion to

arrest or detain Appellant.” Two months passed between the time Officer Hayslip conducted his

last warrant check and he followed appellant to the gas station. We do not consider this gap in

time “recent confirmation.”     Officer Hayslip testified that prior to November 27, 2012 he

routinely checked the status of appellant’s warrant but then stopped when the computer system

received a software update. He said he “was not aware at that time of how they had changed that
                                                 –7–
for us to be able to do name and date of birth.” He provided no explanation for why he did not

attempt to find appellant’s birth date through other means so he could check the warrant list.

       Moreover, we find his testimony that he believed he had reasonable suspicion to detain

appellant based on the Hopkins County arrest warrant; however, he also wanted to detain

appellant to get his birth date to confirm the warrant a circular argument. The law required

Officer Hayslip to first have reasonable suspicion to detain appellant.        He could not stop

appellant in hopes of obtaining information that would then amount to reasonable suspicion.

       The only articulable reason he gave for trying to detain appellant was his two-month-old

belief that appellant had an outstanding warrant. Given that the court in People v. Morgan

determined officers acted unreasonably by relying on a three-day-old warrant list, we likewise

cannot conclude Officer Hayslip acted reasonably in relying on two-month-old information. We

acknowledge that unlike the officers in Morgan, Officer Hayslip provided an explanation for his

failure to conduct a more recent warrant check. However, we are unpersuaded by his attempts to

excuse his failure because of new computer software requiring a person’s birth date. Based on

Officer Hayslip’s prior dealings with appellant and appellant’s previous interactions with law

enforcement, we are hard-pressed to believe Officer Hayslip could not obtain this information

from some other source besides appellant.

       As such, we conclude Officer Hayslip’s reliance on two-month-old information was not a

specific, articulable fact that could reasonably lead him to believe appellant had been, or soon

would be, engaged in criminal activity. See Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim.

App. 2005); Brannock v. State, No. 05-13-00719-CR, 2014 WL 1759125, at *2 (Tex. App.—

Dallas Apr. 30, 2014, no pet.) (mem. op., not designated for publication). Rather, Officer

Hayslip’s belief was nothing more than a mere hunch, a guess, or a vague suspicion. Canalas,

221 S.W.3d at 199.

                                               –8–
       Moreover, even if we excused Officer Hayslip’s failure to check appellant’s outstanding

warrant, the State still failed to produce evidence that would reasonably lead Officer Hayslip to

believe appellant had been, or soon would be, engaged in criminal activity. He testified he

observed a headlight that was not working on the wife’s car, but he admitted this was not the

reason he followed the car to the Exxon station. While he could have initiated a traffic stop

based on this violation of the transportation code, the violation could not support reasonable

suspicion of appellant’s involvement with any criminal activity because he was not driving the

car and Officer Hayslip had yet to identify appellant as the passenger in the car.

       Once at the gas station, appellant sat in the car and did not do anything until after Officer

Hayslip drove by him. After he drove by, appellant got out of the car and walked towards the

gas station. Officer Hayslip did not say appellant ran. In fact, he repeatedly testified that

appellant was walking and “kept walking” towards the bathroom after he commanded him to

stop. There is simply nothing criminal about a person getting out of a car and walking into a gas

station after an officer drives by. See, e.g., Gurrola v. State, 877 S.W.2d 300, 302–03 (Tex.

Crim. App. 1994) (noting a person has a constitutional right to walk away from an officer

without such action creating reasonable suspicion in the mind of the officer that criminal activity

was afoot). Thus, Officer Hayslip did not testify to any specific, articulable facts that could

reasonably lead him to believe appellant had been, or soon would be, engaged in criminal

activity. See Ford, 158 S.W.3d at 492

       Because Officer Hayslip did not have reasonable suspicion to approach appellant in the

first place, the State failed to prove the second element of evading arrest or detention: that a

peace officer was attempting lawfully to detain him. See TEX. PENAL CODE ANN. § 38.04(a).

Thus, we conclude the evidence is legally insufficient to support appellant’s conviction. We




                                                –9–
sustain appellant’s first issue. Because this issue is dispositive of the appeal, we need not

address appellant’s remaining issues. TEX. R. APP. P. 47.1.

                                          Conclusion

       Having found the evidence legally insufficient to support an element of the offense of

evading arrest or detention, we reverse appellant’s conviction and render judgment of acquittal.

See Benavidez v. State, 323 S.W.3d 179, 181 (Tex. Crim. App. 2010).




                                                  /Michael J. O'Neill/
                                                  MICHAEL J. O’NEILL
                                                  JUSTICE



Do Not Publish
TEX. R. APP. P. 47

130889F.U05




                                              –10–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

ISAAC JOHN RUSSELL, Appellant                         On Appeal from the County Court at Law
                                                      No. 6, Collin County, Texas
No. 05-13-00889-CR        V.                          Trial Court Cause No. 006-81954-2013.
                                                      Opinion delivered by Justice O’Neill.
THE STATE OF TEXAS, Appellee                          Justices Moseley and FitzGerald
                                                      participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is REVERSED
and the appellant is hereby ACQUITTED.


Judgment entered this 28th day of May, 2014.




                                                  /Michael J. O'Neill/
                                                  MICHAEL J. O'NEILL
                                                  JUSTICE




                                               –11–
