                             NUMBER 13-17-00334-CR

                               COURT OF APPEALS

                        THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


CATHERINE GUSTAVSON,                                                      Appellant,

                                          v.

THE STATE OF TEXAS,                                                        Appellee.


                     On appeal from the 105th District Court
                           of Nueces County, Texas.


                         MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Rodriguez and Benavides
             Memorandum Opinion by Justice Benavides

          By two issues, appellant Catherine Gustavson challenges her conviction for

evading arrest or detention with a vehicle, a third-degree felony. See TEX. PENAL CODE

ANN. § 38.04 (West, Westlaw through 2017 1st C.S.). Gustavson alleges: (1) the evidence

was insufficient to support the conviction and (2) her trial counsel was ineffective. We

affirm.
                                          I.      BACKGROUND

        On June 19, 2016, as Precinct One Deputy Constable Raul Gamez was responding

to a radio call for an assault,1 he witnessed a vehicle, driven by Gustavson, pass him on

Leopard Street in Corpus Christi.2 Deputy Gamez stated that his vehicle stopped next to

Gustavson’s at a traffic signal and he spoke to her through their open windows. Deputy

Gamez asked Gustavson if she knew what the speed limit was for the area, informed her

of the proper speed limit, and asked Gustavson to slow down. Deputy Gamez stated that

Gustavson started questioning his authority by asking what “gives me the right to tell her.

. . what speed limit to go, so just questioning my authority as a—as a peace officer.” As

Gustavson started raising her voice, Deputy Gamez asked her to pull over. According to

Deput Gamez, Gustavson said no and “took off” as the traffic light turned green.

        Deputy Gamez stated he pulled behind Gustavson with his overhead lights

activated and she refused to pull over and continued driving to the Safari Inn. Deputy

Gamez testified that the Safari Inn is about two to three blocks from the area he first

encountered Gustavson, but there were plenty of places where Gustavson could have

safely pulled over before then. Gustavson seemed upset and only came to a stop upon

reaching the back of the Safari Inn parking lot. Deputy Gamez testified that he would have

pulled Gustavson over for speeding, but then she evaded.

        Gustavson also testified. She admitted that she asked Deputy Gamez if he was

“even a police officer” because in her native state of Nevada, constables are more like


        1 Deputy Gamez testified that at the time of the incident, he was working in an off-duty capacity for
the Regional Transportation Authority in Corpus Christi but driving his marked constable vehicle and was
dressed in his constable uniform.
        2   Deputy Gamez estimated that Gustavson was going around 50–55 miles per hour in a 35 mile per
hour zone. Deputy Gamez also admitted he was driving around 45 miles per hour in excess of the speed
limit, but Gustavson passed him.

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security guards. Gustavson stated that she asked to see his badge and that Deputy

Gamez did not ask her to pull over on Nueces Bay, the cross-street to Leopard where

Deputy Gamez first encountered Gustavson. She also stated that she was unsure if

Deputy Gamez told her to pull over. Gustavson knew Deputy Gamez was behind her

when she left the traffic light and agreed he did turn on his overhead lights. She also

agreed that she could have turned into a nearby parking lot, but wanted to go to the Safari

Inn because she was staying there, felt safe, and wanted witnesses.

       The jury found Gustavson guilty of evading arrest or detention. See id. The trial

court sentenced her to three years’ imprisonment in the Texas Department of Criminal

Justice–Institutional Division, but probated the sentence for two years.      This appeal

followed.

                             II.   EVIDENCE WAS SUFFICIENT

       By her first issue, Gustavson argues the evidence was insufficient to support her

conviction for evading arrest.

       A.     Standard of Review

       When evaluating a sufficiency challenge, the reviewing court views the evidence in

the light most favorable to the verdict to determine whether a rational jury could find the

defendant guilty beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 899 (Tex.

Crim. App. 2010) (plurality op.); see Jackson v. Virginia, 443 U.S. 307, 319 (1979). In

order to reverse a conviction based on insufficient evidence, Gustavson must show that

no rational jury could have found all the elements of the offense beyond a reasonable

doubt. Brooks, 323 S.W.3d at 902. The jury is the sole judge of the credibility of the

witnesses and the weight to be given to their testimony, and a reviewing court is not to



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substitute its judgment as to facts for that of the jury as shown through its verdict.

Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). When the reviewing

court is faced with a record supporting contradicting inferences, the court must presume

that the jury resolved any such conflict in favor of the verdict, even if it is not explicitly

stated in the record. Id.

       A reviewing court must measure the sufficiency of the evidence by the elements of

the offense as defined by a hypothetically correct jury charge. Villarreal v. State, 286

S.W.3d 321, 327 (Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex.

Crim. App. 1997) (en banc)). Such a charge is one that accurately sets out the law, is

authorized by the indictment, does not unnecessarily increase the State's burden of proof

or unnecessarily restrict the State’s theories of liability, and adequately describes the

particular offense for which the defendant was tried. Id.

       B.     Applicable Law and Discussion

       Under a hypothetically correct jury charge, the elements of evading arrest or

detention are: a person commits an offense if she intentionally flees from a person she

knows is a peace officer attempting lawfully to arrest or detain her. TEX. PENAL CODE ANN.

§ 38.04. The evidence presented by the State showed that Deputy Gamez was in uniform

and driving a vehicle that displayed the word “constable” on it. Gustavson herself testified

that she drove away from the stop light and saw Deputy Gamez’s overhead lights on, but

chose not to stop until she reached the Safari Inn, which was around a half of a mile away

from where she initially encountered Deputy Gamez. Although Gustavson stated that she

did not believe Deputy Gamez was a peace officer, that he never told her to pull over, and

that although she saw the overhead lights, she did not pull over until she felt safe, the jury



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was inclined to believe the State had proven all the required elements of evading arrest or

detention with a vehicle. See id.; see also Brooks, 323 S.W.3d at 902.

        Additionally, Gustavson argues that in order to be arrested for evading arrest, she

must have known a peace officer was trying to “arrest” her. However, the penal code

authorizes a charge of evading arrest or detention. See TEX. PENAL CODE ANN. § 38.04

(emphasis added). Deputy Gamez stated that he would have pulled Gustavson over for

speeding, in violation of the Texas Transportation Code. See TEX. TRANSP. CODE ANN. §

545.351, .352 (West, Westlaw through 2017 1st C.S.). “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); see also Jenkins v.

State, 454 S.W.3d 712, 714 (Tex. App.—Corpus Christi 2015, no pet.) (stating that

observations by a police officer supported a jury’s conclusion that there was a lawful

reason to stop the defendant’s vehicle). Deputy Gamez testified that he got behind

Gustavson’s vehicle and turned on his lights after she was seen speeding, questioned his

authority, and then refused to pull over. Therefore, the jury could have inferred that Deputy

Gamez was attempting to detain Gustavson based on her speeding. 3

        Because we do not substitute our judgment for the jury, we find there was sufficient

evidence to support Gustavson’s conviction and overrule her first issue. See Montgomery,

369 S.W.3d at 192.




        3  Gustavson also claims she was stopped in violation of her First Amendment rights for questioning
Deputy Gamez. See U.S. CONST. amend I. However, Deputy Gamez stated he attempted to detain her for
speeding, which is a valid reason for a traffic stop. See State v. Duran, 396 S.W.3d 563, 569–70 (Tex. Crim.
App. 2013) (stating that courts use an objective standard to support a finding of reasonable suspicion or
probable cause to determine if a stop is valid). Additionally, Gustavson did not raise the claim regarding the
violation of her First Amendment rights in the trial court and therefore her complaint now is waived. See
TEX. R. APP. P. 33.1(a).

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                               III.   COUNSEL WAS EFFECTIVE

       By her second issue, Gustavson asserts that her trial counsel was ineffective for

failing to: (1) argue insufficiency of the evidence to the trial court; and (2) present evidence

of the actual distance Gustavson traveled before stopping.

       A.     Standard of Review and Applicable Law

       To prevail on a claim of ineffective assistance of counsel, the defendant must meet

the heavy burden of Strickland v. Washington. 466 U.S. 668 (1984). Under Strickland,

the defendant must show by a preponderance of the evidence that: (1) counsel’s

representation fell below an objective standard of reasonableness, and (2) there is a

reasonable probability that the result of the proceeding would have been different but for

the attorney’s deficient performance. Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim.

App. 1986) (en banc) (citing Strickland, 466 U.S. at 694); Jaynes v. State, 216 S.W.3d

839, 851 (Tex. App.—Corpus Christi 2006, no pet). A “reasonable probability” is one

sufficient to undermine confidence in the outcome. Bone v. State, 77 S.W.3d 828, 833

(Tex. Crim. App. 2002).

       Generally, if the record is silent as to why trial counsel engaged in the action being

challenged as ineffective, there is a “strong presumption” that counsel’s conduct was the

result of sound trial strategy, falling within the wide range of reasonable professional

assistance. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing Ingham

v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984)). To overcome this presumption, a

claim of ineffective assistance must be firmly demonstrated in the record. Id. at 814.

       A “convicted defendant making a claim of ineffective assistance must identify the

acts or omissions of counsel that are alleged not to have been the result of reasonable



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professional judgment.”    Strickland, 466 U.S. at 690.      To prevent unfairly assessing

attorney conduct in hindsight, “there is a presumption that the trial attorney’s performance

conformed to prevailing professional norms at the time of trial—i.e., the challenged action

‘might be considered sound trial strategy.’” Ex parte Bryant, 448 S.W.3d 29, 39 (Tex. Crim.

App. 2014) (quoting Strickland, 466 U.S. at 689). Typically, when counsel’s motivations

for tactical decisions are absent from the record, the appellant is unable to overcome the

“strong presumption that counsel’s conduct was reasonable.” Mallett v. State, 65 S.W.3d

59, 63 (Tex. Crim. App. 2001). “A vague inarticulate sense that counsel could have

provided a better defense is not a legal basis for finding counsel constitutionally

incompetent.” Bone, 77 S.W.3d at 836.

       We look to “the totality of the representation and the particular circumstances of

each case in evaluating the effectiveness of counsel.” Thompson, 9 S.W.3d at 813. If the

appellant fails to prove one prong of the test, we need not reach the other prong. See

Strickland, 466 U.S. at 697; Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).

In evaluating the first prong of Strickland, counsel’s competence is presumed and the

defendant must rebut this presumption by proving that his attorney’s representation was

unreasonable under prevailing professional norms and that the challenged action could

not have been based on sound strategy. Kimmelman v. Morrison, 477 U.S. 365, 384

(1986). The reasonableness of counsel’s performance is to be evaluated from counsel’s

perspective at the time of the alleged error and in light of all the circumstances. Id.

       B.     Discussion

       Gustavson must show that her trial counsel’s representation fell below an objective

standard of reasonableness or there is a reasonable probability that the result of the



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proceeding would have been different but for the attorney’s deficient performance. See

Hernandez, 726 S.W.2d at 55.          Here, neither of allegations amount to ineffective

assistance.

       Gustavson alleges her trial counsel should have presented evidence that the

distance she evaded was shorter than what was testified to during trial. However, the

distance she evaded was not a required element of the State’s case. Just the mere fact

she admitted to seeing Deputy Gamez’s overhead lights attempting to pull her over and

continued to drive was enough to establish the elements necessary for evading arrest or

detention. See TEX. PENAL CODE ANN. § 38.04. Gustavson does not explain how the

introduction of such evidence fell below a “objective standard of reasonableness” or would

have changed the outcome of the trial. See Hernandez, 726 S.W.2d at 55.

       Gustavson also states her trial counsel should have notified the trial court of the

lack of sufficiency of the State’s evidence through a motion for directed or instructed verdict

or through his closing argument. We note that “appellate review of defense counsel’s

representation is highly deferential and presumes that counsel’s actions fell within the wide

range of reasonable and professional assistance.” Bone, 77 S.W.3d at 833. “Under

normal circumstances, the record on direct appeal will not be sufficient to show that

counsel’s representation was so deficient and so lacking in tactical or strategic

decisionmaking as to overcome the presumption that counsel’s conduct was reasonable

and professional.” Id. Rarely will the trial record contain sufficient information to permit a

reviewing court fairly evaluate the merits of such a serious allegation. Id.

       “Under Strickland, the defendant must prove, by a preponderance of the evidence,

that there is, in fact, no plausible professional reason for a specific act or omission.” Id. at



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836.   “From this trial record, one could conclude that there were legitimate and

professionally sound reasons for counsel’s conduct or one could speculate that there were

not.” Id. “Under our system of justice, the criminal defendant is entitled to an opportunity

to explain himself and present evidence on his behalf. His counsel should ordinarily be

accorded an opportunity to explain her actions before being condemned as unprofessional

and incompetent.” Id.

       Without a hearing where trial counsel could explain or defend his actions, we are

not inclined to find his representation ineffective. Therefore, we overrule Gustavson’s

second issue.

                                    IV.    CONCLUSION

       We affirm the trial court’s judgment.


                                                               GINA M. BENAVIDES,
                                                               Justice

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

Delivered and filed the
5th day of July, 2018.




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