                                     In The
                                Court of Appeals
                       Seventh District of Texas at Amarillo

                                     No. 07-12-00179-CR


                              DAVID REX DIAZ, APPELLANT

                                              V.

                            THE STATE OF TEXAS, APPELLEE

                             On Appeal from the 64th District Court
                                     Hale County, Texas
            Trial Court No. A18979-1111, Honorable Robert W. Kinkaid Jr., Presiding

                                        July 10, 2013

                              MEMORANDUM OPINION
                    Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

       Appellant, David Rex Diaz, was convicted of evading arrest or detention,

enhanced by a prior conviction for evading arrest or detention.1 He was sentenced to

confinement in a State Jail Facility (SJF) for a period of two years and ordered to pay a

fine of $2,500.      Through one issue, appellant contends that the evidence was

insufficient to sustain the conviction. We affirm.




       1
           See TEX. PENAL CODE ANN. § 38.04(a), (b)(1)(A) (West Supp. 2012).
                          Factual and Procedural Background


      On July 6, 2011, at approximately 2:00 a.m., Officer Timothy DeLeon was

dispatched to answer a call of a possible burglary. DeLeon met with the citizen who

called in the information and was told that, while emptying trash in the alley behind his

home, the citizen observed two males jump a fence in the alley and then he heard glass

breaking. The citizen described the two suspects as males with one wearing a white

shirt and one wearing a brown shirt.      DeLeon went to the alley and attempted to

determine what occurred.       Not finding any additional evidence, DeLeon began

searching the area around the reported event when he observed a male wearing a

brown shirt. Upon observing this individual, DeLeon turned his police car around and

drove back toward the individual. The individual turned down an alley. By the time

DeLeon turned down the alley, the individual was running away from DeLeon.            As

DeLeon got near the individual, the suspect turned, looked at him, and jumped a fence.

DeLeon observed the suspect jump the back fence adjacent to the alley and then jump

the fence that faced the front of the house. At this time, DeLeon lost sight of the

suspect. DeLeon radioed for back up units to be dispatched and gave a description of

the suspect as a Hispanic male wearing a brown shirt, jeans, and glasses.


      DeLeon continued searching for the suspect and, about ten to fifteen minutes

later, he observed appellant, who was carrying a brown shirt and wearing blue jeans

and glasses, walking across a lawn headed to the door of a house. DeLeon testified

that he pulled up next to appellant in his marked Plainview Police Department patrol car,

got out of the car, and ordered appellant ―to stop right there, Plainview Police

Department.‖ DeLeon was wearing his uniform when he got out of the car.

                                            2
       Appellant ignored the command and ran to the door of the residence. DeLeon

arrived in time to insert his foot and prevent the door from shutting. DeLeon went into

the house and arrested appellant for evading arrest or detention. After hearing the

testimony, the jury convicted appellant of the offense charged in the indictment, and

sentenced him to two years confinement in a SJF and a fine of $2,500.


       Appellant appeals contending that the evidence is insufficient to support the

conviction. We affirm.


                                   Standard of Review


       In assessing the sufficiency of the evidence, we review all the evidence in the

light most favorable to the verdict to determine whether any rational trier of fact could

have found the essential elements of the offense beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Brooks v. State,

323 S.W.3d 893, 912 (Tex.Crim.App. 2010). ―[O]nly that evidence which is sufficient in

character, weight, and amount to justify a factfinder in concluding that every element of

the offense has been proven beyond a reasonable doubt is adequate to support a

conviction.‖ Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We remain mindful

that ―[t]here is no higher burden of proof in any trial, criminal or civil, and there is no

higher standard of appellate review than the standard mandated by Jackson.‖             Id.

When reviewing all of the evidence under the Jackson standard of review, the ultimate

question is whether the jury’s finding of guilt was a rational finding. See id. at 906–07

n.26 (discussing Judge Cochran’s dissenting opinion in Watson v. State, 204 S.W.3d

404, 448–50 (Tex.Crim.App. 2006), as outlining the proper application of a single



                                             3
evidentiary standard of review). ―[T]he reviewing court is required to defer to the jury’s

credibility and weight determinations because the jury is the sole judge of the witnesses’

credibility and the weight to be given their testimony.‖ Id. at 899.


                                           Analysis


        To prove the basic charge of evading arrest or detention, the State had to prove

that:


        1.) appellant

        2.) intentionally fled

        3.) from a person he knows is a peace officer

        4.) attempting to lawfully arrest or detain him.


See TEX. PENAL CODE ANN. § 38.04(a).2 Appellant contends that the evidence was

legally insufficient to support the conviction. In so doing, appellant presents alternative

theories as to why this is so.


        Appellant’s first theory is that the contact between DeLeon and appellant was a

voluntary encounter and, as such, appellant was free to walk away. As pointed out by

appellant and the State, there are three basic types of interactions between the police

and citizens: 1) encounters, 2) investigative detentions, and 3) arrests. Crain v. State,

315 S.W.3d 43, 49 (Tex.Crim.App. 2010). Appellant’s contention is directed at whether

the interaction between himself and DeLeon was an encounter or a detention.




        2
         Appellant is not contending the evidence regarding proof of his prior evading
arrest or detention conviction was insufficient.

                                               4
      Our review of the record leads us to conclude that, when DeLeon observed

appellant walking toward the door of his residence and ordered him to ―stop right there,

Plainview Police Department,‖ the relationship between appellant and DeLeon became

one of an investigative detention because DeLeon projected the authority of his

department and ordered appellant to comply. See id. A jury is reasonable in believing

that DeLeon’s order to stop raised the interaction between himself and appellant to the

level of a detention and that appellant was no longer free to leave. See Jackson, 443

U.S. at 319; Brooks, 323 S.W.3d at 912.


      Inasmuch as we have determined that the interaction between DeLeon and

appellant was an investigative detention, we now turn our attention to the question of

whether DeLeon was attempting to lawfully detain appellant.3 See Pina v. State, 127

S.W.3d 68, 75 (Tex.App.—Houston [1st Dist.] 2003, no pet.) (the lawfulness of an

attempted detention is an element of the offense). Appellant contends that the evidence

does not support the jury’s conclusion that his detention was lawful.            This is so,

according to appellant, because to be lawful, the detention must be supported by

reasonable suspicion supported by specific and articulable facts which when combined

with rational inferences from those facts would lead an officer to conclude that a person

is, has been, or soon will be engaged in criminal activity. See Crain, 315 S.W.3d at 52

(citing Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed. 889 (1968)).


      Our review of the testimony reveals that DeLeon received information from a

citizen regarding the citizen’s personal observations of two men jumping a back fence

      3
         We note that appellant does not contend that he did not recognize DeLeon as a
peace officer. Accordingly, we will not address that element of the offense of evading
arrest or detention.

                                            5
adjacent to an alley at 2:00 in the morning. The citizen then described hearing glass

break. Further, the citizen described the two fence jumpers as males with one wearing

a white shirt and one wearing a brown shirt. Armed with this information, DeLeon

started looking for the two men. While looking for the two suspects, DeLeon saw

appellant wearing a brown shirt and walking down the street after 2:00 a.m. Upon

observing DeLeon driving toward him, appellant turned down an alley and began to run.

As DeLeon began to get close to appellant, appellant looked at DeLeon and jumped an

alley fence, proceeded through a back yard, and jumped the fence in the front of the

house. After losing sight of appellant, DeLeon continued to search for the male in the

brown shirt, with the additional information that the male was Hispanic and wears

glasses. Within ten to fifteen minutes, DeLeon encountered appellant in front of his

house and ordered him to stop. This is when appellant was detained. From a totality of

these circumstances, we conclude that DeLeon had articulable facts which, when

combined with rational inferences from those facts, allowed DeLeon to conclude that

appellant had actually engaged in criminal activity. See id. Therefore, the jury was

rational in believing that appellant was lawfully detained. See Jackson, 443 U.S. at 319;

Brooks, 323 S.W.3d at 912.


      Appellant contends such is not the case because the information that DeLeon

originally received was from an unidentified tipster and, therefore, not reliable. This,

according to appellant, fails to justify any further investigation. See Martinez v. State,

348 S.W.3d 919, 923 (Tex.Crim.App. 2011). At no time before, or during, the trial did

appellant file any written or oral motions requesting the trial court to suppress the

testimony of DeLeon in regard to what the citizen told him. Likewise, at no time during


                                            6
DeLeon’s testimony did appellant object to his testimony regarding the citizen’s report

based upon any perceived violation of appellant’s rights under the Fourth Amendment

to the United States Constitution or any article of the Texas Constitution. Because

appellant failed to object to the testimony of DeLeon regarding the report by the citizen,

he will not be heard to complain about that testimony on appeal. See TEX. R. APP. P.

33.1(a); Little v. State, 758 S.W.2d 551, 563 (Tex.Crim.App. 1988). Accordingly, the

jury properly considered the testimony.


      After reviewing the evidence, we conclude that the jury’s verdict was a rational

verdict and that sufficient evidence supported that verdict. See Jackson, 443 U.S. at

319; Brooks, 323 S.W.3d at 912. Accordingly, appellant’s single issue is overruled.


                                       Conclusion


      Having overruled appellant’s issue, the judgment of the trial court is affirmed.




                                          Mackey K. Hancock
                                              Justice


Do not publish.




                                            7
