Opinion issued November 8, 2012




                                  In The

                          Court of Appeals
                                  For The

                      First District of Texas
                       ————————————
                          NO. 01-11-00350-CR
                        ———————————
                 BARRINGTON THOMPSON, Appellant
                                    V.
                      STATE OF TEXAS, Appellee




                 On Appeal from the 337th District Court
                         Harris County, Texas
                     Trial Court Case No. 1290502



                             OPINION
      A jury found appellant Barrington Thompson guilty of the state jail felony

offense of evading arrest in a motor vehicle. 1 After appellant pleaded true to two

enhancement paragraphs, the trial court sentenced appellant to three years in

prison.   In two issues, appellant asserts on appeal that (1) the evidence is

insufficient to prove that he intentionally fled from a person that he knew to be a

peace officer, who was attempting to detain him and (2) the trial court erred in

overruling his objection to a remark made by the prosecutor during closing

argument.

      We affirm.

                                   Background

      At 3:30 a.m. on December 31, 2010, Houston police officer C.M. Ayala

responded to a criminal mischief call in a residential neighborhood. While at the

scene investigating, Officer Ayala heard a loud noise, which got progressively

louder. The officer stepped into the intersection to investigate the source of the

noise. He believed that the sound was coming from a vehicle.

      Officer Ayala saw a vehicle coming down the street toward him. The

vehicle had only one headlight. The car’s front bumper was dragging on the

pavement. While in the middle of the intersection, Officer Ayala signaled with his


1
      See Act of May 27, 2009, 81st Leg., R.S., ch. 1400, § 4, 2009 Tex. Gen. Laws
      4385, 4385–86 amended (current version TEX. PEN. CODE ANN. § 38.04 (Vernon
      Supp. 2012)).
                                         2
flashlight for the driver to stop. The driver, who was appellant, passed within five

feet of Officer Ayala’s police cruiser, which was parked on the side of the street.

Appellant sped up, drove through the intersection without stopping at the stop sign,

and turned onto another street. Officer Ayala ran to his police cruiser, activated his

lights and siren, and pursued appellant.

      Officer Ayala quickly caught up to appellant, following as close as 10 feet

behind him, with lights flashing and siren sounding. Appellant continued to drive,

traveling at increasing speeds, reaching up to 40 miles per hour, and running

through two more stop signs before he finally pulled over. Officer Ayala later

testified that he believed appellant was forced to stop when appellant’s vehicle was

disabled by the damaged bumper.

      Appellant stumbled out of his car and said, “Man, I’m pissed off. I just

crashed on MLK. I just had an accident.” In addition to his lack of balance,

appellant also displayed other signs of intoxication, such as bloodshot eyes, slurred

speech, and an odor of alcohol.

      Once Officer Ayala and another officer detained him, appellant became

combative and yelled obscenities at the officers. Appellant told the officers that

they were violating his rights, and he requested an attorney.




                                           3
                            Sufficiency of the Evidence

      In his first issue, appellant asserts, “The evidence presented at trial was

legally insufficient to prove that [appellant] intentionally fled from someone he

knew was a police officer attempting to detain him as required under Texas Penal

Code § 38.04.”

A.    Standard of Review

      This Court reviews sufficiency-of-the-evidence challenges applying the

same standard of review, regardless of whether an appellant presents the challenge

as a legal or a factual sufficiency challenge. See Ervin v. State, 331 S.W.3d 49,

53–55 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (construing majority

holding of Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)).               This

standard of review is the standard enunciated in Jackson v. Virginia, 443 U.S. 307,

319, 99 S. Ct. 2781, 2789 (1979). See Ervin, 331 S.W.3d at 53–55. Pursuant to

this standard, evidence is insufficient to support a conviction if, considering all the

record evidence in the light most favorable to the verdict, no rational fact finder

could have found that each essential element of the charged offense was proven

beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; In re

Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071 (1970); Laster v. State, 275

S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750

(Tex. Crim. App. 2007).      We can hold evidence to be insufficient under the

                                          4
Jackson standard in two circumstances: (1) the record contains no evidence, or

merely a “modicum” of evidence, probative of an element of the offense, or (2) the

evidence conclusively establishes a reasonable doubt. See Jackson, 443 U.S. at

314, 318 n.11, 320, 99 S. Ct. at 2786, 2789 n.11, 2789; see also Laster, 275

S.W.3d at 518; Williams, 235 S.W.3d at 750.

      The sufficiency-of-the-evidence standard gives full play to the responsibility

of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and

to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443

U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007). An appellate court presumes that the fact finder resolved any conflicts

in the evidence in favor of the verdict and defers to that resolution, provided that

the resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. In

viewing the record, direct and circumstantial evidence are treated equally;

circumstantial evidence is as probative as direct evidence in establishing the guilt

of an actor, and circumstantial evidence alone can be sufficient to establish guilt.

Clayton, 235 S.W.3d at 778. Finally, “[e]ach fact need not point directly and

independently to the guilt of the appellant, as long as the cumulative force of all

the incriminating circumstances is sufficient to support the conviction.” Hooper v.

State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).




                                         5
B.    Law of the Offense

      A person commits the offense of evading detention with a vehicle if he

intentionally flees in a vehicle from a person he knows is a peace officer

attempting lawfully to arrest or detain him. See Act of May 27, 2009, 81st Leg.,

R.S., ch. 1400, § 4, 2009 Tex. Gen. Laws 4385, 4385–86 amended (current version

TEX. PEN. CODE ANN. § 38.04 (Vernon Supp. 2012)). A person commits a crime

under section 38.04 only if he knows that a police officer is attempting to arrest

him but nevertheless refuses to yield to a police show of authority. See Hobyl v.

State, 152 S.W.3d 624, 627 (Tex. App.—Houston [1st Dist.] 2004, pet. dism’d)

(“[T]he accused must know that the person from whom he flees is a peace officer

attempting to arrest or detain him.”); Brooks v. State, 76 S.W.3d 426, 434 (Tex.

App.—Houston [14th Dist.] 2002, no pet.).

C.    Analysis

      Appellant contends that the evidence is insufficient to show he had the intent

to flee Officer Ayala. He asserts that the evidence does not show he was aware of

Officer Ayala’s presence before the point in time that he stopped his car.

      At trial, Officer Ayala testified that he was standing in the intersection, in

full uniform, waiving his flashlight, and signaling appellant to stop, when

appellant’s vehicle passed within ten feet of him. Appellant then sped up and

drove through the intersection without stopping at the stop sign. The officer ran to

                                         6
his police cruiser, which was parked on the side of the street, only five feet from

where appellant’s vehicle had passed. He activated his emergency lights and siren

and began pursuing appellant. The officer testified that, at times, his cruiser was

within 10 feet of appellant’s car during the chase. Nevertheless, appellant failed to

stop. To the contrary, appellant increased his speed even though he was dragging

his bumper. He also drove through two more stop signs without stopping before he

pulled over.

      On cross-examination, Officer Ayala testified that appellant was aware of

his presence when appellant drove past him at the intersection.

      Q. You don’t know if he ever saw you, do you?
      A. Yes, I do.
      Q. It was dark that night wasn’t it?
      A. It was night. The street is lit. I had a flashlight. I’m in full
      uniform. And, again, there’s a patrol vehicle. There’s two patrol
      vehicles right there in proximity.

      Officer Ayala further testified that appellant had ample opportunity to

realize that he was following him before finally pulling over. The officer pointed

out that he had activated his emergency lights and siren on his police cruiser as he

pursued appellant.

      However, when asked about the effects of alcohol on a driver, Officer Ayala

testified that alcohol can impair a person’s perception. Officer Ayala also admitted




                                         7
that, given the effect of alcohol, it was probable that appellant did not realize that

he was being followed.

      Q. Could have been because he just saw the police officer and
      decided to stop because now he was aware that you were behind him.
      That could have been a reason, couldn’t it?
      A. He might have chosen to stop eventually, yes.
      Q. And you don’t know—you’re not 100% sure he didn’t stop
      because he just saw you. You don’t know that, do you?
      A. Because he had just seen me?
      Q. Yeah. Just became aware that you were there.
      A. Again, he had plenty opportunity prior to that to have seen me.
      Q. But you don’t know that he actually perceived your presence, do
      you?
      A. Based on what you said earlier about the effects of alcohol, he
      probably did not. I’m not sure.

      Citing this portion of the officer’s testimony, appellant argues that Officer

Ayala admitted that appellant was highly intoxicated and may not have understood

that the officer was attempting to detain him. Appellant further argues that, if he

did not realize that the officer was attempting to detain him, then he could not have

been intentionally fleeing from the officer.

      Evidence of a defendant’s intoxication, however, cannot negate the elements

of intent or knowledge. See Hawkins v. State, 605 S.W.2d 586, 589 (Tex. Crim.

App. 1980); see also TEX. PENAL CODE ANN. § 8.04(a) (Vernon 2011). In this

case, the jury was properly instructed that voluntary intoxication is not a defense to

                                          8
the commission of a crime. See Taylor v. State, 885 S.W.2d 154, 158–59 (Tex.

Crim. App. 1994).

       As the fact finder, a jury is entitled to judge the credibility of witnesses and

may choose to believe all, some, or none of the testimony presented by the parties.

Chambers, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). Here, the jury was

within its province to disregard Officer Ayala’s testimony that appellant probably

was not aware of his presence due to his intoxication. See id. This is true in light

of the voluntary intoxication instruction and the circumstantial evidence indicating

that appellant was aware of the officer’s attempt to detain him.

       Viewing all the record evidence in the light most favorable to the verdict, we

cannot say that no rational fact finder could have found that each essential element

of the charged offense was proven beyond a reasonable doubt. See Jackson, 443

U.S. at 319, 99 S. Ct. at 2789; Williams, 235 S.W.3d at 750.

       We overrule appellant’s first issue.

                             Improper Jury Argument

       In his second issue, appellant contends that the trial court erred in overruling

his objection to the State’s improper jury argument, which commented on his

failure to testify.

       Appellant specifically complains of the following statement made by the

prosecutor during summation:

                                           9
          What I do have to prove is that he knew that Officer Ayala was
          following him. And he knew that he was a peace officer. So,
          some of the cross questions were about, how do you know for
          sure what was going through his head? I’ve never tried a case
          where you ever know what’s going through the defendant’s
          head unless he gets—or unless he somehow tells someone. No
          one can do that. I can’t crack open someone’s head and see
          what’s inside. You look at things we do on a daily basis.

Appellant objected on the ground that the argument was improper because it

referred to his constitutional right not to testify. The court overruled the objection.

      We review a trial court’s ruling on an objection to jury argument under the

abuse-of-discretion standard. See Davis v. State, 329 S.W.3d 798, 825 (Tex. Crim.

App. 2010). Appellant correctly points out that any comment on a defendant’s

failure to testify violates both the state and federal constitutions as well as statutory

law. See Randolph v. State, 353 S.W.3d 887, 891 (Tex. Crim. App. 2011); see also

U.S. CONST. amend. V; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. art.

38.08. (Vernon 2005). Such a violation occurs when “the language used was

manifestly intended or was of such a character that the jury would necessarily and

naturally take it as a comment on the defendant’s failure to testify.” Archie v.

State, 340 S.W.3d 734, 738 (Tex. Crim. App. 2011) (quoting Cruz v. State, 225

S.W.3d 546, 548 (Tex. Crim. App. 2007)).

      Assuming that the prosecutor’s comment was an impermissible comment on

appellant’s failure to testify, and that the trial court abused its discretion by

denying appellant’s objection to the comment, we analyze whether appellant was
                                           10
harmed by the error. Because such error infringes on an appellant’s privilege

against self-incrimination, it is of a constitutional magnitude, and must be analyzed

under Rule 44.2(a) of the Texas Rules of Appellate Procedure. See Snowden v.

State, 353 S.W.3d 815, 817 (Tex. Crim. App. 2011). Rule 44.2(a) provides that

“the court of appeals must reverse a judgment of conviction or punishment unless

the court determines beyond a reasonable doubt that the error did not contribute to

the conviction or punishment.” TEX. R. APP. P. 44.2(a).

      Our harm review for constitutional errors is controlled by the Court of

Criminal Appeals analysis in Snowden, 353 S.W.3d at 822. We consider (1) the

nature of the error, (2) the extent emphasized by the State, (3) the probable

implications of the error, and (4) the weight the jury would likely have assigned to

it in the course of the deliberations. See id. These factors are not exclusive; other

considerations may logically inform our harm analysis.2 See id. The Snowden

court emphasized, “At bottom, an analysis for whether a particular constitutional

error is harmless should take into account any and every circumstance apparent in

the record that logically informs an appellate determination ‘whether beyond a




2
      In Snowden, the Court of Criminal Appeals expressly overruled the following
      factors from Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1989):
      identifying the source of the constitutional error and whether declaring the error
      harmless would encourage repeat performances by the State. Snowden v. State,
      353 S.W.3d 815, 821–22 (Tex. Crim. App. 2011).
                                          11
reasonable doubt [that particular] error did not contribute to the conviction or

punishment.’” Id. (alteration in original) (quoting TEX. R. APP. P. 44.2(a)).

      As discussed, here, the nature of the error is the trial court’s overruling of

appellant’s objection to the prosecutor’s indirect comment on appellant’s failure to

testify. Generally, a comment on a defendant’s failure to testify implicates an

illegitimate inference by the jury that such failure indicates a defendant’s guilt

because the defendant does not affirmatively deny the State’s allegations. Such an

inference is, of course, in derogation of a defendant’s constitutional right to remain

silent. See id. at 824–25.

      In this case, the central issue was whether the State proved that appellant

knew Officer Ayala was attempting to detain him and whether he intended to flee

the officer. It would have been impermissible for the jury to infer that appellant’s

silence at trial indicated he had such knowledge and intent.

      A review of the record shows, however, that the risk that the jury made such

inference was low. The record reveals that, other than the comment of which

appellant complains, the prosecutor did not repeat, emphasize, or otherwise invite

the jury to consider appellant’s failure to testify at any other point during trial.

Instead, the comment was isolated and, when read in context, preceded what the

prosecutor did emphasize: appellant’s actions indicating (1) his awareness that

Officer Ayala was attempting to detain him and (2) his intent to flee.

                                         12
      In this respect, the prosecutor emphasized the following evidence during

summation: (1) appellant’s failure to stop when Officer Ayala signaled him with a

flashlight to pull over; (2) Officer Ayala was in the middle of the intersection when

he signaled appellant; (3) appellant passed within five feet of the parked patrol cars

and within ten feet of Officer Ayala; (4) appellant sped up as he left the

intersection and ran through a stop sign; (5) appellant exceeded the speed limit and

failed to stop at two other stop signs as Officer Ayala pursued him; (6) Officer

Ayala closely pursued appellant in his police cruiser with the emergency lights

flashing and with the siren sounding; and (7) Officer Ayala’s belief that appellant

ultimately stopped only because appellant’s car was disabled. The prosecutor also

pointed out that appellant was intoxicated at the time of the pursuit, giving

appellant a reason to evade police.

      Based on this circumstantial evidence, the prosecutor invited the jury to infer

that appellant was aware that Officer Ayala was attempting to detain him and that

appellant intended to flee. Such an inference is a legitimate one. See Hart v. State,

89 S.W.3d 61, 64 (Tex. Crim. App. 2002) (explaining that intent or knowledge

may be inferred from acts, words, and conduct).

      During summation, appellant argued that the State had not shown that he

was aware of Officer Ayala or that he had attempted to flee. In making this

argument, appellant relied on the evidence relating to his intoxication. However,

                                         13
as discussed, the jury was not permitted to consider appellant’s intoxication as a

defense to the elements of the offense.

      On appeal, appellant asserts, “In resolving guilt-innocence, the jury was

required to determine whether or not [appellant] knew that Officer Ayala was

attempting to detain him and whether or not he intentionally fled from that

detention. The comment improperly pointed the jury to a lack of evidence, namely

intent, that only [appellant] could have provided.” As detailed above, the evidence

supporting the inference that appellant knew Officer Ayala was attempting to

detain him and that appellant intended to flee was not lacking; to the contrary, it

was substantial, if not overwhelming.           A jury that believed Officer Ayala’s

testimony would have no need to resort to the improper inference derived from

appellant’s failure to testify. Given the record, it is unlikely that the jury placed

much, if any, weight on appellant’s failure to testify.3



3
      Appellant cites Crocker v. State, 248 S.W.3d 299, 307 (Tex. App.—Houston [1st
      Dist.] 2007, pet. ref’d) to support his position that the error was harmful. There,
      we held that the State’s indirect comment in closing argument regarding the
      defendant’s failure to testify was harmful error. Id. Because it is distinguishable
      in significant respects, Crocker is of limited use to our analysis here. In Crocker,
      the appellant was convicted of aggravated robbery based solely on the
      complainant’s video line-up and in-court identification. See id. at 303. Our
      discussion of the evidence supporting the conviction in Crocker shows that it was
      not substantial or overwhelmingly but was tenuous in a several respects. See id. at
      303, 307. We concluded, “It is possible then that a juror gave at least some weight
      to the prosecutor’s statement that the jury had heard from the State’s witnesses
      only.” Id. at 307. We also concluded that to hold the error harmless had the
      potential “to open the door to similar comments” by the State in other cases. Id.
                                           14
      Lastly, we note that the charge instructed the jury as follows: “In this case,

the defendant has elected not to testify and you are instructed that you cannot and

must not refer to or allude to that fact throughout your deliberations or take it into

consideration for any purpose whatsoever as a circumstance against him.” We

presume that the jury followed this instruction. See Colburn v. State, 966 S.W.2d

511, 520 (Tex. Crim. App. 1998).

      Assuming that the trial court erred by overruling appellant’s objection to the

State’s comment alluding to his failure to testify, we conclude that such error did

not move the jury from a state of non-persuasion to a state of persuasion on any

material issue in the case. See Snowden, 353 S.W.3d at 825 (citing Langham v.

State, 305 S.W.3d 568, 582 (Tex. Crim. App. 2010)).                Nor is such error

“reasonably likely to have caused such prejudice as to distract the jury or divert it

from its proper fact-finding role.”     See id.    We are persuaded to a level of

confidence beyond a reasonable doubt that it made no contribution to the jury’s

determination that the appellant was guilty of evading arrest in a motor vehicle.

See id. We hold that any error by the trial court in overruling appellant’s objection

to the State’s reference to appellant’s failure to testify was harmless error. See

TEX. R. APP. P. 44.2(a).

      We overrule appellant’s second issue.

      This is a factor that we no longer consider in our harm analysis. See Snowden, 353
      S.W.3d at 821–22.
                                          15
                                    Conclusion

      We affirm the judgment of the trial court.




                                             Laura Carter Higley
                                             Justice

Panel consists of Justices Higley, Sharp, and Huddle.

Justice Sharp, dissenting.

Publish. TEX. R. APP. P. 47.2(b).




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