AFFIRMED; Opinion Filed October 30, 2014.




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-13-00376-CR

                               JOE HENRY MACK, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                       On Appeal from the County Court at Law No. 2
                                   Collin County, Texas
                           Trial Court Cause No. 002-80956-2013

                             MEMORANDUM OPINION
                          Before Justices Bridges, Francis, and Myers
                                   Opinion by Justice Myers
       A jury convicted appellant Joe Henry Mack of failure to identify a fugitive with intent to

give false information, and the trial court sentenced him to seventy days in jail. In one issue,

appellant argues the evidence is insufficient to support the conviction. We affirm.

                                          DISCUSSION

       In his issue, appellant contends the evidence is insufficient to support the conviction

because the State failed to prove beyond a reasonable doubt he gave a false name or date of birth

to a peace officer who had lawfully arrested or detained him.

       We review the sufficiency of the evidence under the standard set out in Jackson v.

Virginia, 443 U.S. 307 (1979). Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013).

We examine all the evidence in the light most favorable to the verdict and determine whether any

rational trier of fact could have found the essential elements of the offense beyond a reasonable
doubt. Jackson, 443 U.S. at 319; Matlock, 392 S.W.3d at 667. We must defer to the jury’s

credibility and weight determinations because the jury is the sole judge of the witnesses’

credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326; Brown v.

State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008).

       The information in this case alleged that on or about November 27, 2012, in Collin

County, Texas, appellant “did then and there knowing that the said C. Poligala was a peace

officer, intentionally give a false and fictitious name and date of birth, to C. Poligala, a peace

officer who had lawfully arrested or detained the defendant, and the defendant was then and

there a fugitive from justice[.]” Section 38.02 of the penal code provides in part that a person

commits an offense if he intentionally gives a false or fictitious name, residence address, or date

of birth to a peace officer who has lawfully arrested or detained the person. TEX. PENAL CODE

ANN. § 38.02(b)(1), (2). Section 38.02 also provides that an offense committed under subsection

(b) is a class “A” misdemeanor if it is shown that the defendant was a fugitive from justice at the

time of the offense. Id. § 38.02(d)(2).

       There are three distinct types of police-citizen interactions: (1) consensual encounters,

(2) investigative detentions, and (3) arrests. Wade v. State, 422 S.W.3d 661, 667 (Tex. Crim.

App. 2013); Chambers v. State, 397 S.W.3d 777, 781 (Tex. App.—Houston [14th] 2013, pet.

ref’d). For Fourth Amendment purposes, a detention occurs “[w]hen a police officer detains

someone by restricting his or her movements through either a show of force, the use of physical

restraint, or by communicated commands,” such that the citizen is no longer free to move

independent of police direction. Grissom v. State, 262 S.W.3d 549, 552 (Tex. App.—Texarkana

2008, no pet.). “No bright line rule governs when a consensual encounter becomes a seizure.”

State v. Woodard, 341 S.W.3d 404, 411 (Tex. Crim. App. 2011). “Generally, however, when an

officer through force or a showing of authority restrains a citizen’s liberty, the encounter is no

                                               –2–
longer consensual.” Id. “If ignoring the request or terminating the encounter is an option, then

no Fourth Amendment seizure has occurred.” Wade, 422 S.W.3d at 668.

       The evidence in this case shows that on November 27, 2012, a Plano, Texas police

officer, Chris Poligala, was traveling southbound on H Avenue when he noticed a red shopping

cart in the middle of the road in front of a vacant house. The shopping cart was “full of stuff.”

Officer Poligala knew the house was vacant from his patrols of the area, and he had seen many

transients coming in and out of the house. The house had padlocks on all of the doors, the air

conditioning unit had been stripped of all its metal, and the inside had been stripped of all the

cabinets and appliances and “things like that.”

       Officer Poligala originally thought the cart had been abandoned, and he was going to

arrange for someone to pick it up and move it. But then he saw appellant come down the

driveway from behind the house. Appellant had a kitchen knife and a spool of orange cord in his

hand, and Officer Poligala thought the spool of cord could possibly have come from the house.

The officer suspected that, at the very least, appellant had been criminally trespassing.

       Officer Poligala immediately identified himself as a police officer and began talking to

appellant. The officer recalled appellant’s demeanor was polite and friendly but slightly evasive.

Officer Poligala asked appellant what he was doing at the house, and he said he was looking for

his son. The officer knew a male by the name of Justin Thomas was staying at that house, and he

asked appellant if Justin Thomas was his son. Appellant replied that he was. The officer asked

appellant what his name was, and he said “Mack.”            The officer asked, “Mack Thomas?”

Appellant replied “yes.” The officer confirmed this information a couple of times. The officer

then asked appellant to spell his name, and he spelled it “Thomac.” The officer asked him to

spell it once more, and he again spelled it “Thomac.” Officer Poligala asked appellant if he

knew who owned the house, and he said “yes.” He said the owner’s name was Lee Ann

                                                  –3–
Thompson, but the officer knew the owner was, in fact, Dolly Thomas.

       By this point, Officer Poligala thought appellant was being deceitful and asked for his

date of birth, which he said was July 31, 1951. The officer asked appellant if he had a Texas

driver’s license because that would be easiest way to identify someone. Appellant said he had a

Texas driver’s license under that name and date of birth, but did not have it with him.

       Officer Poligala asked for another officer to assist him, and Plano police officer Richard

Glenn soon arrived at the scene. Officer Glenn recognized appellant and said his name was

Mack, but Mack was appellant’s last name, not his first name. The officers then searched the

computer database and identified appellant as Joe Henry Mack, whose date of birth was July 31,

1959. Officer Poligala recalled that as the encounter progressed, appellant became upset. At one

point he started pulling things out of the shopping cart and throwing them on the ground, saying

he had never stolen anything in his life. As he was throwing things down on the ground,

appellant also said he was fifty-three years old, at which point Officer Poligala knew he could

not have been born in 1951. When the officer confronted appellant with this information and

asked for his real name and date of birth, appellant told the officer “that I would have to take him

to jail instead of him giving me his actual name.” Officer Poligala ran appellant’s name through

the NCIC database and found there was an active warrant for appellant’s arrest. When the

officer asked appellant about the warrant, appellant admitted knowing about it. Appellant was

placed under arrest.

       The video from the camera in Officer Poligala’s police cruiser, which was admitted into

evidence, shows that after appellant told the officer his name was “Mack,” the officer asked

appellant for his date of birth. Appellant told the officer he was born on July 31, 1951, after

which Officer Poligala asked appellant to spell his last name. Appellant spelled his last name as

“Thomac,” and confirmed that spelling to the officer. Appellant asked the officer if he had done

                                                –4–
anything wrong, and the officer explained he would have to verify appellant’s identity because

he did not know him and had never seen him in the neighborhood. Officer Poligala and

appellant spoke for several more minutes, after which the officer asked appellant if he had an

identification card or driver’s license from the State of Texas. Appellant responded that he had

identification but lost it, and the officer asked appellant if he was sure about the spelling of his

last name “because it doesn’t seem to make . . . sense.” Appellant again gave the officer his last

name but changed the spelling to “Thomas,” and then said he did not remember spelling his

name with a “c.” When the second officer recognized appellant and confirmed “Mack” was

appellant’s last name, not his first name, appellant attempted to push the cart away. The officer

put his hand on the cart and told appellant: “Hang tight. Hang tight just for a second, okay?

Because I want to make sure none of this stuff here is stolen.” After Officer Poligala searched

the computer database using appellant’s correct name and date of birth and confirmed there was

a warrant for appellant’s arrest, appellant was placed under arrest.

       Appellant maintains that the evidence in this case shows nothing more than a consensual

encounter. Appellant contends he was not being detained by Officer Poligala when the officer

asked him for his name, and that a reasonable person in appellant’s position would have felt free

to decline the officer’s request or otherwise terminate the encounter. Furthermore, appellant

contends there is nothing about the conversation between appellant and Officer Poligala that

would lead a reasonable person to believe appellant was being detained. Appellant further

argues that, during the encounter, there were no additional circumstances such as the officer’s

use of language or tone of voice, the display of a weapon, or some physical touching of

appellant, that would indicate compliance with officer’s request was mandatory. See, e.g., State

v. Priddy, 321 S.W.3d 82, 87 (Tex. App.––Fort Worth 2010, pet. ref’d) (listing various factors

that indicate a police-citizen interaction is a seizure, rather than a consensual encounter).

                                                 –5–
       Among the authorities cited by appellant is Quick v. State, 999 S.W.2d 79 (Tex. App.––

Houston [14th Dist.] 1999, no pet.). Quick involved a situation where a deputy sheriff serving a

warrant for the defendant’s arrest knocked on the defendant’s front door and identified himself.

Id. at 80. The defendant opened the door (and stood behind burglar bars across the doorway),

but gave a false name. Id. When the deputy showed the defendant the felony arrest warrant, the

defendant again gave the false name. Id. The deputy told the defendant he had a felony warrant

and that the defendant needed to open the burglar bars, at which point the defendant said, “It’s

me, it’s me,” then shut the door. Id. Subsequently, the garage door of the residence opened and

the defendant, who was standing there, identified himself. Id. The court of appeals held the

evidence was insufficient to support a failure to identify conviction because the appellant had not

yielded to the deputy’s show of authority or been physically forced to yield at the time he gave

the deputy a false name, and thus, was not detained as required by the statute. Id. at 80–81.

       The situation in the present case is different. The jury could have concluded appellant

yielded to Officer Poligala’s initial show of authority when he asked appellant for identifying

information, and that the detention continued as appellant provided false identifying information

and waited for the officer to check it. Furthermore, even if appellant was not detained when the

officer initially asked appellant for his identifying information, the jury could have concluded he

was detained when, as shown by the evidence, the officer explained to appellant that he would

have to verify appellant’s identity, and asked for appellant’s name again, or when the officer put

his hand on the shopping cart, told appellant to “hang tight,” and stopped appellant from leaving

the area before he confirmed appellant’s identity. The fact that one could infer appellant had not

submitted to the officer’s authority does not show the evidence in this case was insufficient. As

the reviewing court, we must presume the trier of fact resolved the conflicting inferences in favor

of the prosecution, and defer to that determination. See Clayton v. State, 235 S.W.3d 772, 778

                                               –6–
(Tex. Crim. App. 2007). Officer Poligala’s testimony and the video footage from the camera in

his police cruiser provided sufficient evidence from which the jury could have concluded

appellant made the false identification while he was lawfully detained. See TEX. PENAL CODE

ANN. § 38.02(b); see Jackson, 443 U.S. at 319. We conclude the evidence is sufficient to

support the verdict. We therefore overrule appellant’s issue.

       The trial court’s judgment is affirmed.

                                                            / Lana Myers/
                                                            LANA MYERS
                                                            JUSTICE

Do Not Publish
TEX. R. APP. P. 47
130376F.U05




                                                 –7–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

JOE HENRY MACK, Appellant                          On Appeal from the County Court at Law
                                                   No. 2, Collin County, Texas
No. 05-13-00376-CR        V.                       Trial Court Cause No. 002-80956-2013.
                                                   Opinion delivered by Justice Myers.
THE STATE OF TEXAS, Appellee                       Justices Bridges and Francis participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 30th day of October, 2014.




                                             –8–
