Opinion issued November 21, 2012




                                    In The
                             Court of Appeals
                                    For The
                         First District of Texas
                      ————————————
                        NO. 01-11-00864-CR
                      ———————————
               PEDRO ANGEL GUTIERREZ, JR., Appellant
                                V.
                   THE STATE OF TEXAS, Appellee



                   On Appeal from the 176th District Court
                           Harris County, Texas
                       Trial Court Case No. 1272197




                         MEMORANDUM OPINION
      After appellant waived his right to a jury, the trial court found appellant

Pedro Angel Gutierrez, Jr. guilty of the third-degree felony offense of evading

arrest or detention using a vehicle and having been previously convicted of
evading detention.1 After finding allegations in two enhancement paragraphs to be

true, the trial court sentenced appellant, as a habitual felony offender, to 25 years in

prison.2

      Appellant raises three issues on appeal. He contends that (1) the evidence

was insufficient to prove the allegations in the State’s enhancement paragraphs; (2)

the trial court erred by finding that the State had not engaged in prosecutorial

vindictiveness; and (3) the evidence is insufficient to support his conviction for

evading arrest.

      We affirm.

                               Background Summary

      At 1:55 in the morning on July 28, 2010, Deputy M. Gustaffson of the

Harris County Sherriff’s Office was on patrol in his marked police car when he

saw appellant commit the traffic offense of failing to signal a turn.           Deputy

Gustaffson decided to stop appellant based on that traffic offense.

      The deputy was 200 feet from appellant when he saw the offense. He had to

turn his vehicle around to effectuate the stop. As he was turning his vehicle


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). Section 38.04(b) was amended in 2011. The amendment is not
      applicable here because the offense occurred prior to the date the amendments
      became effective.
2
      See PEN. CODE ANN. § 12.42(d) (Vernon 2011).
                                           2
around, Deputy Gustaffson saw appellant’s vehicle rapidly increase its speed and

turn onto another street.      Deputy Gustaffson did not initially activate the

emergency lights and siren on his vehicle. He later testified at trial that he thought

that appellant was already fleeing from him, and he did not want to “spook”

appellant “into running any quicker by turning on my lights.” Deputy Gustaffson

wanted to catch up to appellant’s vehicle.        He stated that he needed to get

appellant’s license plate number before he “initiated the actual pursuit.”

      As he attempted to get close to appellant’s vehicle, Deputy Gustaffson

followed appellant as he turned onto to a series of streets. Appellant continued to

speed as he drove. Deputy Gustaffson decided to activate the emergency lights

and siren on his patrol car because it was apparent to him the appellant was fleeing

from him. At that point, Deputy Gustaffson called into dispatch that he was

engaging in a pursuit of a vehicle.

      After the deputy activated the lights and siren on his patrol car, appellant

continued to speed, driving between 50 and 70 miles per hour down the street.

Appellant ran through two red lights without stopping at an intersection. Appellant

drove on and made a turn at a red light without stopping. Appellant continued

driving at approximately 70 miles per hour through a residential neighborhood.

Appellant ran through another red light without stopping. At the next intersection,

appellant did not stop at a stop sign. He was traveling over 70 miles per hour as he

                                          3
went through the intersection.      Appellant continued to another intersection,

disregarded the stop sign, and made a right turn. The lights and siren on the patrol

car had remained on since Deputy Gustaffson had activated them. Appellant then

made a turn at an intersection, again disregarding a stop sign.

      Around this time, Deputy Gustaffson saw appellant turn off his headlights

and continued to drive. Deputy Gustaffson would testify that law enforcement call

this being “blacked out.”

      Because he was familiar with the area, Deputy Gustaffson was able to head

off appellant’s vehicle. Appellant ultimately stopped his vehicle. His headlights

were still turned off.

      Appellant was indicted for the offense of evading arrest or detention by

using a motor vehicle. Because the indictment also alleged that appellant had

previously been convicted of evading detention in February 2010, the instant

offense was elevated to a third-degree felony.3 The indictment also contained two

enhancement paragraphs, alleging that appellant had been convicted in 2003 of the

offense of burglary of a habitation and convicted in 2008 of the offense of

possession of a controlled substance.




3
      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)).
                                     4
      Appellant waived his right to a jury, and the case was tried to the bench. To

support the primary offense, the State presented the testimony of Deputy

Gustaffson.   Appellant stipulated to the evidence showing that he had been

previously convicted of evading detention. The trial court found appellant guilty

of the primary offense of third-degree evading arrest or detention.

      Appellant pleaded “not true” to the two enhancement allegations in the

indictment. The State offered the “pen packets,” with the judgments and sentences

for the two felony offenses described in the indictments’ two enhancement

paragraphs and finger print cards for each offense.        The State presented the

testimony of a fingerprint expert.      He testified that he had recently taken

appellant’s fingerprints. He had compared those prints with those in the pen

packets. He had concluded that the fingerprints in the pen packets were those of

appellant.

      The trial court found the enhancement allegations to be true. Based on these

findings, appellant was sentenced as a habitual offender. The trial court sentenced

him to 25 years in prison. This appeal followed. Appellant raises three issues on

appeal.

              Sufficiency of the Evidence to Prove Primary Offense

      In his third issue, appellant alleges that the evidence was insufficient to show

that he committed the offense of evading arrest or detention.

                                          5
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 id. 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 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.

                                        6
      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).

B.    Law of the Offense

      At the time of the commission of the instant offense, the Penal Code

provided that a person committed the offense of evading arrest or detention if he

intentionally fled from a person he knew was 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.

                                          7
§ 38.04 (Vernon Supp. 2012)). The offense was elevated to a third-degree felony if

the actor used a vehicle while in flight and the actor had previously been convicted

of the offense of evading arrest or detention. See id. The law is clear that a person

commits the offense of evading arrest or detention only if he knows that a peace

officer is attempting to arrest or detain 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

      In support of his sufficiency challenge, appellant asserts that the evidence

did not show that he knew that a peace officer was attempting to detain him.

Appellant points out that there was no video camera in Deputy Gustaffson’s patrol

car; thus, there was no video of the pursuit. Although there was no video evidence

of the pursuit, Deputy Gustaffson gave detailed testimony. With the aid of maps of

the area, Deputy Gustaffson described the point at which he activated the patrol

car’s lights and siren, the exact route taken during the pursuit, and the manner in

which appellant was driving.

      Appellant also asserts that, “for a major portion of the incident,” the

emergency lights and siren on Deputy Gustaffson’s patrol car were not activated.

                                          8
Contrary to this assertion, Deputy Gustaffson testified that he pursued appellant

without the lights and siren activated for approximately 45 seconds. He stated that

he activated the emergency equipment when he called the pursuit into dispatch.

His testimony and the police “call slip,” indicating when Deputy Gustaffson called

the pursuit into dispatch, and when the pursuit ended, indicate that he pursued

appellant with his emergency equipment activated for over two-and-one-half

minutes.

      Appellant further contends that the record does not indicate that appellant

heard the siren on Deputy Gustaffson’s patrol car once it was activated. The

deputy testified that, after he saw appellant commit the traffic offense, he was not

close to appellant’s vehicle. For this reason, he did not initially activate the lights

or siren on his patrol car. The deputy testified that he thought doing so might

cause appellant to flee. The deputy stated that he was attempting to catch up to

appellant when he formed the belief that appellant already knew he was pursuing

him. At that point, the deputy activated his emergency equipment.

      Although the record does not reflect how close Deputy Gustaffson

ultimately got to appellant’s vehicle, the evidence shows that, after the deputy

activated his emergency equipment, appellant ran through four red lights and three

stop signs traveling at times in access of 70 miles per hour. The evidence also

showed that, after the deputy had activated his emergency equipment, appellant

                                          9
turned off his headlights and continued to drive until he was headed off and

stopped by the deputy. From this evidence, the trial court, as the fact finder, could

have reasonably inferred that, from the time Deputy Gustaffson activated his

emergency equipment, appellant knew that the deputy was a peace officer

attempting lawfully to detain him.

      Viewing all the evidence, direct and circumstantial, in the light most

favorable to the jury verdict, we conclude that a rational fact finder could have

found, beyond a reasonable doubt, all of the essential elements of the charged

offense of evading detention. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.

More precisely, the trial court could have found, beyond a reasonable doubt, that

appellant intentionally fled from a person he knew was a peace officer attempting

lawfully to detain him. We hold that the evidence is sufficient to support the

judgment of conviction.

      We overrule appellant’s third issue.

       Sufficiency of the Evidence Regarding Enhancement Allegations

      In his first issue, appellant contends that the evidence was not sufficient to

support the trial court’s finding that the State’s two enhancement allegations were

true. Specifically, appellant contends that the State failed to show that he is the

same person previously convicted of the offenses of burglary of a habitation and




                                         10
possession of a controlled substance, as alleged in the enhancement paragraphs of

the indictment.

      To establish a prior conviction for sentence enhancement purposes, the State

must prove beyond a reasonable doubt that the prior conviction exists and the

defendant is linked to that conviction. Flowers v. State, 220 S.W.3d 919, 921

(Tex. Crim. App. 2007); Beck v. State, 719 S.W.2d 205, 210 (Tex. Crim. App.

1986) (“It is incumbent on the State to go forward and show by independent

evidence that the defendant is the person so previously convicted.”). No specific

document or type of proof is required. Flowers, 220 S.W.3d at 921.

      At trial, the State offered the testimony of Harris County Sheriff’s Office

Crime Scene Investigator Deputy G. Clayton. He testified that his job duties

include fingerprint identification. Through Deputy Clayton, the State introduced

Exhibit 12, a document containing the inked right and left thumb print of appellant.

The deputy stated that he had taken the prints from appellant.

      The State also introduced Exhibit 5, authenticated business records of the

Texas Department of Corrections. Exhibit 5 contains pen packets pertaining to

convictions for the offenses of burglary of a habitation and possession of a

controlled substance. The exhibit includes a judgment of conviction and sentence

for burglary of a habitation and a judgment of conviction and sentence for

possession of a controlled substance. Each judgment bears appellant’s name,

                                        11
“Pedro Angel Gutierrez, Jr.” Each judgment also has appellant’s thumb print on

the last page. The thumb print on the judgment for the offense of burglary of a

habitation is very faint.

      The pen packets also contain photographs of Pedro Angel Gutierrez, Jr and a

finger print card for each of the two enhancement offenses: burglary of a habitation

and a possession of a controlled substance. In addition to identifying the offense

and the sentence received for each offense, the fingerprint card contains appellant’s

name, date of birth, sex, race, weight, height, eye color, hair color, and skin tone.

Each print card has finger prints for all five fingers, including a right and left

thumb print. Deputy Clayton testified that he compared the finger prints in the pen

packet with those in Exhibit 12. He stated that the fingerprints in the pen packet

were the same as those in Exhibit 12. In other words, he matched the prints in the

pen packets to those contained in Exhibit 12, which were established to be

appellant’s prints.

      The Court of Criminal Appeals has “consistently held that a prior conviction

alleged for enhancement . . . may be established by certified copies of a judgment

and a sentence and authenticated copies of the Texas Department of Corrections

records including fingerprints, supported by expert testimony identifying them as

identical with known prints of the defendant.” Beck, 719 S.W.2d at 209. Viewing

the evidence in the light most favorable the judgment, we conclude that the

                                         12
evidence was sufficient to link appellant beyond a reasonable doubt to the

convictions alleged in the two enhancement paragraphs. See id. We hold that the

evidence was sufficient to support the trial court’s findings of true for the two

enhancement allegations.

      We overrule appellant’s first issue.

                           Prosecutorial Vindictiveness

      In his second issue, appellant asserts that “the trial court erred in not finding

that the State engaged in prosecutorial vindictiveness.”

      Appellant filed a motion to quash the enhancement allegations in the

indictment. To support the motion, he argued, in part, that the State had engaged

in prosecutorial vindictiveness. Appellant explained that, on the day following his

arrest for the instant offense, the State had presented a criminal complaint that did

not include the two enhancement paragraphs. At that time, the State offered to

recommend that appellant receive a two-year prison sentence in return for a guilty

plea. Appellant rejected the offer. In his motion to quash, appellant explained that

he told the State that he was rejecting the offer because “he had been unable to

contact his family.” Appellant wrote, “At the following court appearance, after

indictment and inclusion of the two enhancement paragraphs, the State offered 25

years. And at all times since the State has offered no less than ‘double digits.’”




                                         13
      Before trial, the trial court heard appellant’s motion to quash. Appellant

argued that the State had engaged in prosecutorial vindictiveness because it had

increased the minimum amount of punishment that it would accept to enter into a

plea bargain. The record from the hearing shows that appellant was represented by

counsel the day after his arrest, when he rejected the State’s offer of a two-year

sentence.   It also shows that appellant later counter-offered with a six-year

sentence. The State rejected the counter-offer, indicating that it would not accept

less than a “double digit” sentence.

      At the hearing, the prosecutor acknowledged that appellant had been

cooperative and had not committed any additional criminal offenses since his

arrest. The prosecutor explained why the minimum sentence that the State would

accept had increased. He stated that the initial two-year offer had been made

because the case “came out of Intake improperly.” The prosecutor explained that

State’s current offer of a 25-year sentence was based on appellant’s habitual

offender status and on his criminal record showing 13 past criminal convictions.

The prosecutor also cited “the dangerous nature of the pursuit” in this case.

      Appellant testified at the hearing. He stated that he was willing to accept a

six year sentence in exchange for pleading guilty.       He explained that he had

rejected the State’s initial two-year offer because he wanted to speak with his wife




                                         14
about it. On cross-examination, appellant acknowledged that his wife was not an

attorney.

      At the end of the hearing, the trial court denied appellant’s motion to quash.

On appeal, appellant contends that the trial court erred in its ruling. He asserts,

“[A] decision to prosecute violates due process when criminal charges are brought

in retaliation against a Defendant for exercising his legal rights.”

      In his brief, appellant raises an argument to support his prosecutorial

vindictiveness claim that he did not assert in the trial court. He now contends that

the State raised the minimum sentence it would accept for a plea bargain in

retaliation for appellant’s exercise of his right to prepare a defense. Specifically,

appellant intimates that he did not accept the two-year offer because he needed

time to determine whether Deputy Gustaffson’s patrol car had a dash camera,

which could have recorded the pursuit.         In other words, he needed time to

determine whether there was an exculpatory video that might aid his defense.

      Appellant contends that, once he learned that there was no dash camera, he

counter-offered with a six-year sentence, which was rejected. He asserts that the

State’s refusal to accept his counteroffer, and its prosecution of him as a habitual

offender, was done in retaliation for his seeking possible exculpatory evidence to

aid in his defense.




                                          15
      As mentioned, appellant did not raise this argument in the trial court to

support his prosecutorial vindictiveness allegation.       When a party asserts an

argument on appeal that is different from his argument in the trial court, the issue

is forfeited on appeal. See Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App.

1990) (holding that a trial court objection stating one legal basis may not be used to

support a different legal theory on appeal).       Because he did not support his

prosecutorial vindictiveness complaint in the trial court with the argument,

appellant has waived on appeal his argument that the State retaliated against him

for exercising his right to determine whether there was exculpatory evidence. See

id.

      Appellant also intimates that the State was motivated to pursue him as a

habitual offender and reject his counteroffer because he exercised his “legal right”

to contact his wife before accepting the initial two-year offer.

      Generally, prosecutors have broad discretion to decide what charges to file

against a criminal defendant. Neal v. State, 150 S.W.3d 169, 173 (Tex. Crim. App.

2004). For example, a prosecutor may not increase the charges against a defendant

simply as a punishment for invoking a right, such as pursuing an appeal. Id. “To

punish a person because he has done what the law plainly allows him to do is a due

process violation of the most basic sort.” United States v. Goodwin, 457 U.S. 368,

372, 102 S. Ct. 2485, 2488 (1982).         A constitutional claim of prosecutorial

                                          16
vindictiveness may be established in either of two distinct ways: (1) proof of

circumstances that pose a “realistic likelihood” of such misconduct sufficient to

raise a “presumption of prosecutorial vindictiveness,” which the State must rebut

or face dismissal of the charges; or (2) proof of “actual vindictiveness”—that is,

direct evidence that the prosecutor’s charging decision is an unjustifiable penalty

resulting solely from the defendant’s exercise of a protected legal right. Neal, 150

S.W.3d at 173 (citing Goodwin, 457 U.S. 368, 380–81, 102 S. Ct. at 2492).

      Both avenues to proving prosecutorial vindictiveness require the defendant

to exercise a protected legal right. See id. Appellant intimates that consulting with

his wife before entering into a plea agreement was a “legal right;” however, he

provides no legal authority for this. Because appellant has not asserted that he

exercised a protected legal right, the trial court did not err when it implicitly found

that the State had not engaged in prosecutorial vindictiveness.

      We overrule appellant’s second issue.

                                     Conclusion

      We affirm the judgment of the trial court.



                                               Laura Carter Higley
                                               Justice

Panel consists of Justices Jennings, Higley, and Sharp.

Do not publish. TEX. R. APP. P. 47.2(b).
                                          17
