Opinion issued June 27, 2019




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                            ————————————
                               NO. 01-18-00289-CR
                            ———————————
                    JONATHAN WILLIAM DAY, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee



             On Appeal from County Criminal Court at Law No. 1
                           Tarrant County, Texas
                        Trial Court Case No. 1498320




                        MEMORANDUM OPINION

      A jury found appellant, Jonathan William Day, guilty of the misdemeanor

offense of evading arrest or detention, and the trial court assessed his punishment at
220 days in county jail.1 In three points of error, appellant contends that (1) the

evidence was insufficient to support the jury’s verdict; (2) the pretrial identification

process involving a punishment witness was so suggestive that it tainted the in-court

identification of appellant as the suspect in an unadjudicated car chase incident; and

(3) the trial court erred in overruling appellant’s objection to the testimony of an

expert witness who was not on the State’s witness list. We reverse.

                                     Background

      On May 15, 2015, C.W. Heizer, Marshal for Richland Hills, arrived at a

residence to serve a warrant on a man named Danny Branton. As Heizer sat in his

car three houses away finishing paperwork, he saw two bicyclists pull into the

driveway of the residence. Concerned that one of the individuals might be Branton,

Heizer got out of his car to approach them before they could enter the residence.

      As he exited the car, Heizer saw a white SUV followed by a tan truck pass

him and pull into the driveway. Appellant, the driver of the white SUV, began

talking with one of the bicyclists. Heizer approached the men and asked them where

Branton was but got no response. When the driver of the tan truck, Mr. Acorn,

started his vehicle, Heizer approached the truck and asked everyone for



1
      Originally appealed to the Second Court of Appeals in Fort Worth, this case was
      transferred to this Court by the Texas Supreme Court pursuant to its docket
      equalization efforts. See TEX. GOV’T CODE § 73.001.

                                           2
identification. Appellant handed Heizer an ID. Heizer then noticed a woman in the

back seat of Acorn’s truck. Acorn’s front seat passenger got out and walked into the

house.

      Heizer gathered the individuals’ identifying information and began calling in

their names and dates of birth to check for warrants. Appellant told Heizer that he

needed to go to work and wanted to leave. Heizer replied, “I’m trying to figure

everything out. You got to—I just—you got to wait.” Appellant then told Heizer

that “[h]e had warrants out of Fort Worth,” to which Heizer responded, “I’m not

worried about a Fort Worth traffic warrant.”

      Heizer subsequently informed appellant that appellant had a warrant for his

arrest out of Haltom City. Heizer allowed appellant to make a phone call but told

him that he could not leave. Appellant took off running but was caught two blocks

away and arrested.

      At the conclusion of trial, the jury found appellant guilty of evading arrest or

detention, and the trial court assessed his punishment at 220 days in county jail. This

appeal followed.




                            Sufficiency of the Evidence

                                          3
      In his first point of error, appellant contends that the evidence is insufficient

to support his conviction for evading arrest or detention because the State failed to

prove that Heizer lawfully detained him.

   A. Standard of Review

   When reviewing the sufficiency of the evidence, we view all of the evidence in

the light most favorable to the verdict to determine whether any rational fact finder

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

Jackson v. Virginia, 443 U.S. 307, 319 (1979); Adames v. State, 353 S.W.3d 854,

859 (Tex. Crim. App. 2011) (holding that Jackson standard is only standard to use

when determining sufficiency of evidence). The jurors are the exclusive judges of

the facts and the weight to be given to the testimony. Bartlett v. State, 270 S.W.3d

147, 150 (Tex. Crim. App. 2008). We may not re-evaluate the weight and credibility

of the evidence or substitute our judgment for that of the fact finder. Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

   B. Applicable Law

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

flees from a person he knows is a peace officer attempting lawfully to arrest or detain

him. TEX. PENAL CODE § 38.04(a). The lawfulness of the attempted detention is an

element of the offense that must be proven by the State. Guillory v. State, 99 S.W.3d

735, 741 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).

                                           4
      A police officer may lawfully conduct a temporary detention if there is

reasonable suspicion to believe that the detained person is violating the law. Neal v.

State, 256 S.W.3d 264, 280 (Tex. Crim. App. 2008). An officer has reasonable

suspicion if the officer “has specific, articulable facts that, combined with rational

inferences from those facts, would lead him to reasonably conclude that the person

detained is, has been, or soon will be engaged in criminal activity.” State v. Kerwick,

393 S.W.3d 270, 273 (Tex. Crim. App. 2013). “These facts must amount to more

than a mere hunch or suspicion.” Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim.

App. 1997). “The articulable facts used by the officer must create some reasonable

suspicion that some activity out of the ordinary is occurring or has occurred, some

suggestion to connect the detainee with the unusual activity, and some indication the

unusual activity is related to crime.” Id.

      The standard for determining whether reasonable suspicion exists is an

objective one. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). There

only needs to be an objective basis for the detention; the subjective intent of the

officer conducting the detention is irrelevant. Id. In making a reasonable suspicion

determination, we consider the totality of the circumstances. Ford v. State, 158

S.W.3d 488, 492–93 (Tex. Crim. App. 2005). We review de novo the legal question

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




                                             5
reasonable suspicion. Madden v. State, 242 S.W.3d 504, 517 (Tex. Crim. App.

2007).

   C. Analysis

      Appellant contends that Heizer unlawfully detained him because Heizer had

no articulable facts which could have led him to reasonably conclude that appellant

had violated the law. He argues that once he produced identification to Heizer

showing that he was not Branton, Heizer’s continued detention of him was unlawful.

Appellant further asserts that Heizer’s subsequent discovery of his warrant and his

attempt to flee do not change the unlawfulness of the initial detention.

      The State contends that a rational jury could have concluded that Heizer

lawfully detained appellant. In support of its contention, the State argues that

“because Appellant told Marshall Heizer that he was driving without a license and

could only produce another type of ID when Marshall Heizer requested

identification, Heizer had the reasonable suspicion necessary to detain Appellant for

driving without a license.” The State cites Texas Transportation Code section

521.025, which provides, in relevant part, that “[a] peace officer may stop and detain

a person operating a motor vehicle to determine if the person has a driver’s license

as required by this section.” TEX. TRANSP. CODE § 521.025(b).

   However, on direct examination, Heizer testified:

      Q: All right. So [appellant] gave you his ID that identified who he was,
      and what did you do at that point?
                                          6
       A: I was still dealing with the driver who was wanting to just – he
       claimed to back up in the street to park his truck. I told him, “You can’t
       drive. You don’t have a driver’s license on you, so I need you to write
       down your name, date of birth,” had him turn off his vehicle.

It is clear from this testimony that Heizer was referring to Acorn, the driver of the

tan truck, whom Heizer testified had tried to leave and who told Heizer that he did

not have an ID, and not appellant.

       Appellant also contends that Heizer had no reason to detain him for driving

without a license because Heizer never demanded to see a driver’s license. Heizer

testified:

       Q: So if you asked everybody there if they were Danny Branton, if they
       knew who Danny Branton was and nobody said anything, what did you
       do next?

       A: I told everybody that I needed to see their identifications.

       Q: And generally what do people give you when you ask for
       identification?

       A: Driver’s license, ID card, whatever they have, passport maybe.

       Q: And what did everybody say?

       A: They – well, the guy in the truck tried to leave and said he didn’t
       have an ID. The gentleman in the right front passenger seat got out,
       grabbed his wallet, acted like he was going to show me an ID, and then
       Mr. Day and Mr. Cole handed me their IDs.

       Q: That ID that you got from Mr. Day, was that a driver’s license?

       A: No.

                                           7
      Q: But it was some other kind of ID?

      A: Yes.

      The State argues that “[o]nce Heizer saw Appellant driving and he did not

produce a driver’s license, Heizer had the reasonable suspicion necessary—

articulable facts that combined with rational inferences—that Appellant was driving

without a license.” Heizer testified that (1) appellant was driving, (2) Heizer asked

the individuals for identification, and (3) appellant produced a photo ID that was not

a driver’s license. Had Heizer asked appellant for his driver’s license and appellant

not produced his driver’s license, Heizer would have had reasonable suspicion that

appellant was driving without a license.       See TEX. TRANSP. CODE § 521.025

(mandating that individuals driving in Texas have in their possession current driver’s

licenses and display them when asked to by police officer and stating that failure to

comply is criminal offense). Here, however, the evidence shows only that Heizer

asked to see appellant’s identification and that appellant complied with his request.

Furthermore, when Heizer was asked what people generally give him when he asks

for identification, he replied, “Driver’s license, ID card, whatever they have,

passport maybe.” This testimony further undermines the assertion that Heizer had

articulable facts that led him to reasonably conclude that appellant was violating the

law. Kerwick, 393 S.W.3d at 273.




                                          8
      The State also contends that Heizer’s detention of appellant was lawful to

determine whether appellant (1) was Branton and (2) had a warrant for his arrest.

The State is correct that Heizer’s detention of appellant to determine whether he was

Branton was lawful. However, it is the continued detention after Heizer determined

that appellant was not Branton about which appellant complains. Heizer testified

that he knew appellant was not Branton once he saw appellant’s identification. The

State contends that Heizer’s detention of appellant was lawful to determine whether

appellant had a warrant for his arrest but a detention may not be prolonged solely in

hopes of finding evidence of some other crime. See Kothe v. State, 152 S.W.3d 54,

64 (Tex. Crim. App. 2004) (concluding proposition that warrant check cannot be

used solely as means to extend detention once reasonable suspicion forming basis

for stop has been dispelled is consistent with rationale behind Supreme Court’s

development of Fourth Amendment law); Davis, 947 S.W.2d at 245 (holding

purpose of stop for suspicion of DWI effectuated and detention should have ended

when officer determined driver was merely tired). Once Heizer determined that

appellant was not Branton, there was no basis to suspect that he was involved in

criminal activity and his detention should have ended.

      Based on the totality of the circumstances, we conclude that there is

insufficient evidence of specific, articulable facts showing reasonable suspicion for

Heizer’s detention of appellant. See Davis, 947 S.W.2d at 241. Therefore, there is

                                         9
no evidence from which a rational jury could determine that appellant’s detention

was lawful. Adames, 353 S.W.3d at 859. Accordingly, we sustain appellant’s first

point of error.2

                                       Conclusion

      Because the evidence is insufficient to support appellant’s conviction for

evading arrest or detention, we reverse the trial court’s judgment and render a

judgment of acquittal.




                                                  Russell Lloyd
                                                  Justice

Panel consists of Justices Lloyd, Kelly, and Hightower.

Do not publish. TEX. R. APP. P. 47.2(b).




2
      Because appellant’s first point of error affords him the greatest relief and is
      dispositive of the appeal, we need not address his remaining points of error
      concerning whether (1) the pretrial identification process involving a punishment
      witness tainted his in-court identification of appellant and (2) the trial court erred in
      overruling his objection to the testimony of an expert witness who was not on the
      State’s witness list. See TEX. R. APP. P. 43.3, 47.1.

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