                                    NO. 12-15-00081-CR

                            IN THE COURT OF APPEALS

                TWELFTH COURT OF APPEALS DISTRICT

                                       TYLER, TEXAS

JOSHUA PAUL CALHOUN,                                 §   APPEAL FROM THE 173RD
APPELLANT

V.                                                   §   JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                             §   HENDERSON COUNTY, TEXAS

                                    MEMORANDUM OPINION
       Joshua Paul Calhoun appeals his conviction for evading arrest with a vehicle, for which he
was sentenced to imprisonment for fifteen years. In eleven issues, Appellant argues that there are
errors in the charge, the judgment, and the sentence; that the State failed to prove the enhancement
paragraph and various other extraneous offenses; and that the evidence is insufficient to support
the verdict. We reverse as to punishment only and remand for a new punishment hearing.


                                            BACKGROUND
       Appellant was charged by indictment with evading arrest with a vehicle. He pleaded “not
guilty,” and the matter proceeded to a jury trial.
       At trial, the evidence showed that Appellant’s employer, Brooks Atwood, reported his
pickup truck stolen. The next day, an employee at a retail store contacted Atwood and told him
that Appellant was in the store and Atwood’s truck was in the parking lot. Atwood contacted the
police, who soon located the truck traveling on the highway. Deputy Spencer Gray attempted to
stop the truck, but it accelerated and eventually eluded him.
       Gray found the truck abandoned in a hay meadow. The police set up a perimeter and began
to search for the driver. While patrolling the area, investigator Michael Shelley saw a man sit
down on the porch of a residence. Shelley pulled into the driveway, and the man ran toward the
tree line and into some heavy brush. Shelley ordered him to come out of the brush. The man came
out and identified himself as Appellant.
       Ultimately, the jury found Appellant “guilty” of evading arrest with a vehicle, and the trial
court assessed his punishment at imprisonment for fifteen years. This appeal followed.


                                   VOID CONVICTION AND SENTENCE
       In Appellant’s first and second issues, he argues that his felony conviction and sentence are
void because the charge’s application paragraph authorizes conviction for only misdemeanor
evading arrest.
Analysis
       Appellant was charged by indictment with the felony offense of evading arrest with a
vehicle. See TEX. PENAL CODE ANN. § 38.04(b) (West Supp. 2016). But the application paragraph
of the trial court’s charge reads as follows:


                Now, if you find from the evidence beyond a reasonable doubt that on or about the 18th day
       of June, 2014, in Henderson County, Texas, the defendant, Joshua Paul Calhoun, did then and there,
       intentionally flee from Spencer Gray, a person Joshua Paul Calhoun knew was a peace officer who
       was attempting lawfully to arrest or detain Joshua Paul Calhoun, then you will find defendant guilty
       as charged in the indictment.


Thus, the application paragraph fails to mention that the jury must find a vehicle was involved in
the evading.
       Appellant argues that this is not charge error, but rather that the trial court instructed the
jury on the lesser included misdemeanor offense of evading arrest. See id. He maintains that a
misdemeanor charge is appropriate because Shelley testified Appellant ran from him on foot. But
nothing in the record otherwise suggests that the trial court intended to instruct the jury on a
misdemeanor offense. Furthermore, the application paragraph instructs the jury that upon making
the specified findings, they should find Appellant guilty “as charged in the indictment.” The
indictment charges Appellant with a felony. Therefore, we conclude that the omission of the
“vehicle” element is charge error and does not render Appellant’s conviction a misdemeanor
conviction. The State concedes the omission constitutes charge error.
       A failure to instruct the jury on one element of an offense is subject to a harmless error
analysis. Olivas v. State, 202 S.W.3d 137, 143 (Tex. Crim. App. 2006). Because Appellant did
not object to the charge, we review the error for egregious harm. See Almanza v. State, 686


                                                        2
S.W.2d 157, 171 (Tex. Crim. App. 1984). In reviewing for egregious harm, we consider the entire
jury charge, the state of the evidence, the contested issues, the closing arguments, and any other
relevant information in the record. Olivas, 202 S.W.3d at 144.
       A review of the record in this case shows that the jury found Appellant evaded arrest with a
vehicle. The abstract portion of the jury charge provides that “a person commits the offense of
evading arrest if he, while using a vehicle, intentionally flees from a person he knows is a peace
officer attempting to lawfully arrest or detain him.” Furthermore, the application paragraph states
that the jury must find Appellant fled from Gray, not Shelley. The evidence of Appellant’s fleeing
from Gray pertained only to the vehicle pursuit, not the foot pursuit.               Moreover, in closing
arguments, the State argued that Appellant evaded arrest in a vehicle, while Appellant argued that
he was not the driver of that vehicle. Finally, the jury found in a special issue on deadly weapon
use that Appellant used or exhibited a vehicle during the commission of the offense. Based on all
of the relevant information in the record, we conclude that Appellant did not suffer egregious harm
as a result of the charge error. Accordingly, we overrule his first and second issues.


                                         EVIDENTIARY SUFFICIENCY
       In Appellant’s third issue, he argues that the State failed to prove the enhancement
paragraph in the indictment. In Appellant’s fourth, fifth, sixth, seventh, and eighth issues, he
argues that the State failed to prove five extraneous offenses that witnesses testified about in the
punishment phase. In Appellant’s ninth issue, he argues that the evidence is insufficient to show
he was the driver of the vehicle.
Standard of Review and Governing Law
       The Jackson v. Virginia1 legal sufficiency standard is the only standard that a reviewing
court should apply in determining whether the evidence is sufficient to support each element of a
criminal offense that the state is required to prove beyond a reasonable doubt. See Brooks v. State,
323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Legal sufficiency is the constitutional minimum
required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction.
See Jackson, 443 U.S. at 315-16, 99 S. Ct. at 2786-87; see also Escobedo v. State, 6 S.W.3d 1, 6
(Tex. App.–San Antonio 1999, pet. ref’d).




       1
           443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786–87, 61 L. Ed. 2d 560 (1979).


                                                          3
         The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact
could have found the essential elements of the offense beyond a reasonable doubt. See Jackson,
443 U.S. at 320, 99 S. Ct. at 2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim.
App. 1993). The evidence is examined in the light most favorable to the verdict. See Jackson,
443 U.S. at 320, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186. This requires the reviewing court
to defer to the trier of fact’s credibility and weight determinations, because the trier of fact is the
sole judge of the witnesses’ credibility and the weight to be given their testimony. See Brooks,
323 S.W.3d at 899; Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. A “court faced with a record of
historical facts that supports conflicting inferences must presume—even if it does not affirmatively
appear in the record—that the trier of fact resolved any such conflicts in favor of the prosecution,
and must defer to that resolution.” Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. A successful legal
sufficiency challenge will result in rendition of an acquittal by the reviewing court. See Tibbs v.
Florida, 457 U.S. 31, 41-42, 102 S. Ct. 2211, 2217-18, 72 L. Ed. 2d 652 (1982).
         The sufficiency of the evidence is measured against the offense as defined by a
hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). Such a charge would include 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
is tried.” Id.
         To prove Appellant guilty of evading arrest with a vehicle, the State was required to prove
that, while using a vehicle, he intentionally fled from Gray, whom he knew was a peace officer
attempting lawfully to arrest or detain him. See TEX. PENAL CODE ANN. § 38.04 (West Supp.
2016).
Enhancement Paragraph
         Appellant argues that the State failed to prove the enhancement paragraph because the
evidence does not sufficiently link him to the offense alleged in it. The State contends that
Appellant waived his error by failing to object to the admission of the certified judgment in the
case. Alternatively, the State contends that the evidence is sufficient to prove the enhancement
paragraph.
         A plea of “true” satisfies the state’s burden of proving an enhancement allegation. Wood v.
State, 486 S.W.3d 583, 587 (Tex. Crim. App. 2016). But there must be affirmative evidence in the
record that the defendant pleaded “true.” Id. at 587-88. Without such evidence, the record must


                                                   4
contain evidence sufficient to prove the allegation beyond a reasonable doubt. Id. at 588. To prove
an enhancement allegation, the state must prove beyond a reasonable doubt that the prior
conviction exists and that the defendant is linked to the conviction. Id. No specific manner of
proof is required to establish these two elements. Id.
       The enhancement paragraph of Appellant’s indictment alleges that he was convicted of
felony theft in cause number A-10,030 in Henderson County.             To prove the enhancement
allegation, the State offered a certified copy of an order revoking community supervision and
imposition of sentence in that case. The defendant named in the order is “Joshua Paul Calhoun.”
The order contains the defendant’s right thumbprint. The State produced no evidence linking
Appellant’s thumbprint to the one in the order.
       After the State offered the order, along with the judgments in several other state and federal
convictions, defense counsel stated, “We don’t have any objection to the State’s charges. We don’t
believe they properly proved up the federal charge.” On appeal, the State argues that this position
by the defense constitutes an admission to the enhancement allegation, relieving the State of its
burden to prove Appellant’s connection to the conviction. We have found no authority supporting
the State’s argument, and we disagree. A sufficiency claim need not be preserved for review at the
trial level and is not waived by the failure to do so. Mayer v. State, 309 S.W.3d 552, 555 (Tex.
Crim. App. 2010). Appellant may have waived any complaint regarding the admission of the
order into evidence, but the State’s burden to link Appellant to the order could not be waived by
Appellant’s failure to object. See id.; Wood, 486 S.W.3d at 588.
       After reviewing the record, we conclude that the evidence is insufficient to link Appellant
to the conviction in the enhancement paragraph. Accordingly, we sustain Appellant’s third issue.
Extraneous Offenses
       In Appellant’s fourth through eighth issues, he argues that we should remand this case for a
new punishment hearing because “the State failed to prove the extraneous offenses and prior
convictions beyond a reasonable doubt.” Because we have sustained Appellant’s third issue, this
case will be remanded for a new punishment hearing. Therefore, we need not address Appellant’s
fourth through eighth issues. See TEX. R. APP. P. 47.1. Accordingly, we overrule Appellant’s
fourth through eighth issues.
Identity
       Appellant argues that the evidence of his identity as the vehicle’s driver is insufficient
because the record does not reflect whom Shelley identified in the courtroom, no witness could


                                                  5
identify Appellant as the driver during the pursuit, and the State produced no other evidence to
prove he was the driver. We disagree.
       Although the State did not follow the better practice of asking that the record reflect
Shelley identified Appellant as the person he arrested, the record nonetheless shows that Shelley
identified him as such. See Rohlfing v. State, 612 S.W.2d 598, 601 n.2 (Tex. Crim. App. [Panel
Op.] 1981).     Appellant, representing himself, cross-examined Shelley. During this cross-
examination, Appellant consistently referred to the person Shelley arrested as “Mr. Calhoun,” but
Shelley at times referred to the person he arrested as “you.” In one such instance, Appellant asked
Shelley, “So when you pulled up and identified yourself as Henderson County Sheriff’s Office,
how did Mr. Calhoun react?” Shelley responded, “Well, when I exited my vehicle, Mr. Calhoun
was already in the woods. When I instructed, yelled, identified myself, and instructed you to come
out, you were cooperative and came out.”          We conclude that Shelley sufficiently identified
Appellant as the person he arrested.
       Furthermore, even though no witness could identify Appellant as the driver during the
pursuit, the record contains evidence that he was the driver. Deputy Cynthia Clements testified
that on the previous day, she spoke with Atwood regarding his stolen truck. On the date of the
pursuit, Atwood called Clements with information about the truck. He said that a retail store
employee had called and told him Joshua Paul Calhoun was there and Atwood’s truck was in the
parking lot. Clements notified Gray, and they parked their vehicles near State Highway 155 to
look for the truck. A short time later, Gray radioed to Clements that he was behind the truck.
When the truck passed Clements, she saw a white male in the driver’s seat. Clements and Gray
engaged in a high speed pursuit of the truck and eventually lost sight of it.
       Shelley testified that he heard about the pursuit and responded by going to the area where
the abandoned truck was found. Chief Deputy Dan Parker was forming a perimeter to search for
the suspect, Joshua Calhoun, who had fled on foot. Parker assigned Shelley a portion of a county
road to patrol. About an hour later, Shelley saw someone outside a home where he had seen no
people or vehicles previously. When he tried to make contact, the person ran into some heavy
brush near the home. The person eventually came out of the brush and identified himself as
Joshua Calhoun. He appeared tired and very sweaty, and he had scratches that would indicate he
had been running through the woods.
       Shelley further testified that he assisted with the processing and search of the truck. Found
in the truck were a Kroger receipt containing the current day’s date and a time of 8:46 a.m., a


                                                  6
Whataburger receipt containing the current day’s date and a time of 10:49 a.m., and a check
payable to Joshua Calhoun. The pursuit began shortly after 11:00 a.m., about twenty minutes after
the time on the Whataburger receipt. Shelley later obtained surveillance videos from the Kroger
and Whataburger stores listed in the receipts. Appellant appears in both videos wearing the same
clothing that he was wearing when he was arrested. In the Whataburger video, Appellant is seen
driving a truck of the same make, model, and year as the stolen truck, and with the same style of
wheels and grille guard.
        Viewing the evidence in the light most favorable to the jury’s verdict, we conclude that a
rational jury could have reasonably inferred that Appellant was the driver who evaded the police.
Accordingly, we overrule Appellant’s ninth issue.


                                          GEESA INSTRUCTION
        In Appellant’s tenth issue, he argues that the trial court erred by including the Geesa
definition of “reasonable doubt” in the jury charge.
Standard of Review
        The review of an alleged jury charge error in a criminal trial is a two-step process. Abdnor
v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). First, an appellate court must determine
whether there is error in the jury charge. Id. Then, if there is charge error, the court must
determine whether there is sufficient harm to require reversal. Id. at 731-32. The standard for
determining whether there is sufficient harm to require reversal depends on whether the appellant
objected to the error at trial. Id. at 732.
        If the appellant objected to the error, the appellate court must reverse the trial court’s
judgment if the error “is calculated to injure the rights of the defendant.” TEX. CODE CRIM. PROC.
ANN. art. 36.19 (West 2006). This means no more than that there must be some harm to the
accused from the error. Almanza, 686 S.W.2d at 171. An appellant who did not raise the error at
trial can prevail only if the error is so egregious and created such harm that he has not had a fair
and impartial trial. Id. “In both situations the actual degree of harm must be assayed in light of
the entire jury charge, the state of the evidence, including the contested issues and weight of
probative evidence, the argument of counsel and any other relevant information revealed by the
record of the trial as a whole.” Id. The record must show that the defendant suffered actual harm,
not merely theoretical harm. Id. at 174.



                                                  7
Applicable Law
       In Geesa v. State, 820 S.W.2d 154, 162 (Tex. Crim. App. 1991), the court of criminal
appeals held that the following definition of reasonable doubt must be submitted to the jury in all
criminal cases:


       A “reasonable doubt” is a doubt based on reason and common sense after a careful and impartial
       consideration of all the evidence in the case. It is the kind of doubt that would make a reasonable
       person hesitate to act in the most important of his own affairs.

       Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that you
       would be willing to rely and act upon it without hesitation in the most important of your own affairs.


       In Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000), the court of criminal
appeals overruled this holding and found instead that “the better practice is to give no definition of
reasonable doubt at all to the jury.” However, the court further held that if the state and the
defense agreed to give the Geesa instruction to the jury, the trial court’s acquiescence to their
agreement would not be reversible error. Id.
Analysis
       Here, the trial court submitted the Geesa instruction to the jury without objection by the
State or the defense. The record is silent as to any possible agreement by the parties to submit the
instruction.
       On appeal, Appellant argues that the trial court erred by submitting the instruction, and that
he was egregiously harmed by the error. The State argues that the error, if any, is harmless
because the evidence of guilt is overwhelming and the charge otherwise properly instructed the
jury on the burden of proof and the presumption of innocence.
       Even if we were to assume that the instruction was submitted in error, such error is not
reversible in this case. Based on our review of the record of the trial as a whole, we cannot
conclude that Appellant was egregiously harmed by the submission of the Geesa instruction. See
Almanza, 686 S.W.2d at 171. Accordingly, we overrule Appellant’s tenth issue.


                                           MOTION FOR MISTRIAL
       In Appellant’s eleventh issue, he argues that the trial court erred by denying his motion for
mistrial without first interviewing certain jurors.




                                                         8
Standard of Review and Applicable Law
       A trial court’s denial of a mistrial is reviewed under an abuse of discretion standard, and its
ruling must be upheld if it was within the zone of reasonable disagreement. Coble v. State, 330
S.W.3d 253, 292 (Tex. Crim. App. 2010). Mistrial is an extreme and exceedingly uncommon
remedy that is appropriate only when it is apparent that an objectionable event at trial is so
emotionally inflammatory that curative instructions are not likely to prevent the jury from being
unfairly prejudiced against the defendant. Id. Whether a particular error calls for a mistrial
depends on the peculiar facts and circumstances of the case. Hernandez v. State, 805 S.W.2d 409,
413 (Tex. Crim. App. 1990).
       Requiring an accused person to wear handcuffs before the jury infringes his constitutional
presumption of innocence. Clark v. State, 717 S.W.2d 910, 918 (Tex. Crim. App. 1986). All
efforts should be maintained to see that this does not occur unless there is a showing of exceptional
circumstances or a manifest need for such restraint. Id. at 918-19. A momentary, inadvertent, and
fortuitous encounter away from the courtroom between a handcuffed accused and one or more of
the jurors does not necessarily call for a mistrial or reversal. Id. at 919. An appellant must make
an affirmative showing of prejudice from such an encounter to be entitled to a reversal. Swanson
v. State, 722 S.W.2d 158, 163 (Tex. App.–Houston [14th Dist.] 1986, pet. ref’d). The prejudice
arising from an inadvertent glimpse of a handcuffed defendant may be cured by a proper
instruction. Id.
Analysis
       On the second day of trial, the following exchange occurred:


       APPELLANT: I would like to make a statement that this morning, during the process of me being
       brought over here, I was held out front with three jurors that came by and witnessed me in the back
       of the police car. The last three jurors, two females and a male.
       ....

       TRIAL COURT: Well, see, if I ask the jury about it, then they know that you are in custody and
       they know that you were brought over here in a sheriff’s vehicle.

       APPELLANT:         That’s why I brought it up to you without them present, sir.

       TRIAL COURT: It’s possible that they were not really even looking at you. It’s possible, if they
       looked at you, they didn’t realize it was you. And I think that the best thing to do is to just let it lie.
       ....

       APPELLANT:         I would like to make an oral motion of a mistrial based on those facts.

       TRIAL COURT: Okay. The motion is denied.



                                                           9
         On appeal, Appellant argues that the trial court denied him the opportunity to ask the three
jurors whether they had seen him anywhere outside the courtroom, and if so, whether that
occurrence had prejudiced them against Appellant. He consequently argues that we should reverse
his conviction because it is unknown whether the jurors saw him and whether he was deprived of
his right to a fair trial.
         We do not read the trial court’s statements as denying Appellant an opportunity to question
the jurors. Appellant did not ask for that opportunity. And his statements to the trial court imply
that he did not want one. Appellant directs us to no authority supporting his argument that an
interview of the jurors was required when Appellant neither requested nor wanted one. We
conclude that the trial court did not abuse its discretion either by failing to interview the jurors or
by denying Appellant’s motion for mistrial. Accordingly, we overrule Appellant’s eleventh issue.


                                                    DISPOSITION
         Having sustained Appellant’s third issue and overruled his remaining issues, we affirm the
conviction but reverse the portion of the judgment imposing sentence and remand the cause to the
trial court for a new punishment hearing.2

                                                                         GREG NEELEY
                                                                            Justice



Opinion delivered September 30, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                              (DO NOT PUBLISH)




         2
         At the new punishment hearing, the State may once again attempt to prove the enhancement allegation. See
Wood, 486 S.W.3d at 591 (Keller, P.J., dissenting); Ex parte Miller, 330 S.W.3d 610, 625 (Tex. Crim. App. 2009).


                                                          10
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                        SEPTEMBER 30, 2016


                                         NO. 12-15-00081-CR


                                    JOSHUA PAUL CALHOUN,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee


                                Appeal from the 173rd District Court
                        of Henderson County, Texas (Tr.Ct.No. A-21,464)

                       THIS CAUSE came to be heard on the oral arguments, appellate record
and the briefs filed herein, and the same being considered, because it is the opinion of this court
that there was error in the judgment of the court below, it is ORDERED, ADJUDGED and
DECREED by this court that the judgment be reversed as to punishment only and the cause
remanded to the trial court for a new punishment hearing in accordance with the opinion of
this court; and that this decision be certified to the court below for observance.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
