Opinion issued July 7, 2016




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-15-00291-CR
                              NO. 01-15-00292-CR
                              NO. 01-15-00293-CR
                           ———————————
                  DANIEL SHERMAN BROWN, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                  On Appeal from the 183rd District Court
                            Harris County, Texas
               Trial Court Case No. 1414895, 1422157, 1422158


                                 OPINION

      Appellant Daniel Sherman Brown was charged by indictment with three

offenses: being a felon in possession of a firearm, possession of a controlled

substance, and evading arrest in a motor vehicle. The cases were consolidated for
trial, and a jury found Brown guilty of all three charges. Brown was sentenced to

20 years’ confinement for being a felon in possession of a firearm, 10 years’

confinement for possession of a controlled substance, and 90 years’ confinement

for evading arrest in a motor vehicle. On appeal, Brown contends that insufficient

evidence supports his conviction for evading arrest and that he was entitled to a

mistrial following allegedly improper closing argument by the State. We affirm.

                                   Background

      On January 19, 2014, Officers M. Glover and M. Jacobs of the Houston

Police Department (“HPD”) were working an approved extra job at the 44 Club in

northeast Houston. As explained by the officers at trial, the phrase “approved extra

job” describes a situation wherein a private entity or individual employs off-duty

police officers. Throughout that evening at the 44 Club, both officers were in

uniform with their HPD badges visible.

      Officers Glover and Jacobs interacted with Brown three times that evening

before the conduct giving rise to the charged offenses occurred. Officer Glover

testified that he and Officer Jacobs first encountered Brown after receiving a report

from the club owner that Brown had a weapon inside the club. Officers Glover

and Jacobs testified that they identified themselves as police officers, asked Brown

to step outside the club to talk with them, patted him down to check for weapons,

and, finding none, told Brown he could go back into the club. The officers



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testified that, shortly thereafter, Brown got into an altercation with another male

attendee.   Again, the officers asked Brown to step outside, and, because the

altercation had not turned physical, the officers gave Brown a warning. Both

officers testified that they explained to Brown that he would not be allowed to stay

at the club if he caused any further issues.

      Officer Glover testified that, within minutes of their allowing Brown back

into the club, Brown was involved in an altercation with a female attendee. The

officers were told that Brown had grabbed a woman by her head or hair. The

officers testified that they told Brown to leave the premises.      Officer Jacobs

testified that Brown was further informed that he would be arrested for trespassing

if he returned. Both officers testified that Brown was upset about being asked to

leave the club. Officer Glover described Brown as belligerent. He further testified

that, in addition to calling him a variety of names, Brown teased him that he

thought he could do anything he wanted because he was a police officer and that he

must have become a police officer because he was picked on in high school.

Brown further teased that he made more money than the officers and drove a nicer

car—specifically, a Cadillac.       Officer Glover testified that Brown was so

intoxicated that they felt he could not safely drive himself home; instead, they

waited with Brown for someone to give him a ride. Officer Glover testified that,

after someone drove Brown away, the officers went back inside the club. Officer



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Jacobs testified that, throughout these initial three contacts with Brown, Brown did

not appear to have any difficulty hearing or comprehending the officers’

instructions.

      Officer Glover testified that, sometime later, the parking attendant came into

the club and reported to him that someone was in the parking lot with a gun. Both

officers went outside to investigate. Officer Glover testified that he noticed a red

Cadillac in the parking lot near the front door and driving towards the exit. The

officers testified that they followed the vehicle on foot as it left the parking lot.

After exiting the parking lot, the vehicle stopped and Brown got out of the driver’s

seat. Officer Jacobs testified that he confidently identified Brown as he got out of

the Cadillac not only because of his recent interactions with Brown, but also

because Brown was wearing a distinctively colored yellow shirt that night.

      According to testimony from both officers, Brown stepped out of his car

with a shotgun in his hand and walked towards the trunk of the car. Officer Glover

testified that he pulled his gun, got behind a truck 20 to 25 yards from Brown, and

began ordering Brown to drop the weapon. Officer Jacobs testified that he also

drew his gun and sought cover behind a vehicle. Officer Glover testified that he

was continuously yelling to Brown to “Drop the shotgun, get down on the ground,

drop the shotgun, drop the shotgun.” Officer Jacobs testified that he observed

Officer Glover making such commands and he himself did not also begin making



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commands in order to avoid confusing Brown. Officer Glover testified that Brown

did not respond to his commands and instead “just stood there looking at [the

officers].” Officer Jacobs testified that there was no way Brown did not know the

officers were present. A woman exited from the passenger side of the Cadillac,

walked to Brown at the rear of the vehicle, and began telling Brown to get back

into the car and put down the shotgun. Officer Glover called for assistance over

his HPD radio. Despite Officer Glover’s continued demands to put down the

weapon and get on the ground, neither Brown nor his passenger complied. Instead,

they got back into the Cadillac and drove away. Officer Glover testified that

Brown drove away at a high rate of speed, at which point he relayed a description

of the vehicle and direction of travel to responding patrol units.

      As HPD’s Officer D. Davila was responding to the scene, he had already

heard details about the suspect vehicle. Officer Davila testified that, on his way to

Club 44, he believed he saw the red Cadillac driving at a high rate of speed in the

opposite direction. Officer Davila tried to turn around and locate the vehicle, but

he was unable find it and continued to the 44 Club. Once he arrived at the club,

Officer Davila received information from Officer Glover and began searching the

area for the red Cadillac. Officer Davila testified that, as he was driving around

looking for the red Cadillac, he was dispatched to a location within two miles of

the 44 Club where someone was reportedly discharging a firearm. When Officer



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Davila arrived, he saw Brown’s red Cadillac parked at a slant in the driveway with

the front two tires on the grass. Officer Davila testified that he got out of his patrol

car, drew his weapon, and ordered the person inside the car to get out. Officer

Davila testified that a woman got out of the car, but did not respond to instructions

to lie down, instead calling out for Brown by name. Within a minute, Brown came

out of the house yelling “What’s going on, I didn’t do nothing.” Officer Davila

testified that he ordered Brown to get on the ground, and Brown complied.

      Both suspects were arrested and searched. Officer Davila testified that

officers found in Brown’s left pocket a substance that Mariam Kane, a chemist

with the Houston Forensic Science Center, tested and testified was 0.58 grams of

cocaine.

                            Sufficiency of the Evidence

      In his second issue, Brown contends that insufficient evidence supports his

conviction for evading arrest because the State did not adduce evidence showing

that Brown knew Officers Glover and Jacobs were attempting to detain or arrest

him at the 44 Club.

A.    Standard of Review

      An appellate court reviews legal and factual sufficiency challenges using the

same standard of review. See Griego v. State, 337 S.W.3d 902, 903 (Tex. Crim.

App. 2011). “Under this standard, evidence is insufficient to support a conviction



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if considering all record evidence in the light most favorable to the verdict, a

factfinder could not have rationally found that each essential element of the

charged offense was proven beyond a reasonable doubt.” Gonzalez v. State, 337

S.W.3d 473, 478 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd) (citing Jackson

v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979)).         Evidence is

insufficient under this standard in four circumstances: (1) the record contains no

evidence probative of an element of the offense; (2) the record contains a mere

“modicum” of evidence probative of an element of the offense; (3) the evidence

conclusively establishes a reasonable doubt; or (4) the acts alleged do not

constitute the criminal offense charged. Gonzalez, 337 S.W.3d at 479.          The

sufficiency of the evidence is measured by the elements of the offense as defined

in a hypothetically correct jury charge, which 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.”

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

      An appellate court “determine[s] whether the necessary inferences are

reasonable based upon the combined and cumulative force of all the evidence

viewed in the light most favorable to the verdict.” Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007) (quoting Hooper v. State, 214 S.W.3d 9, 16–17



                                         7
(Tex. Crim. App. 2007)).      A court treats direct and circumstantial evidence

equally: circumstantial evidence can be as probative as direct evidence, and

circumstantial evidence alone can be sufficient to establish guilt. Clayton, 235

S.W.3d at 778 (quoting Hooper, 214 S.W.3d at 13). When the record supports

conflicting inferences, an appellate court presumes that the factfinder resolved the

conflicts in favor of the verdict and defers to that resolution. Id. (citing Jackson,

443 U.S. at 326, 99 S. Ct. at 2793). “An appellate court likewise defers to the

factfinder’s evaluation of the credibility of the evidence and weight to give the

evidence.” Gonzalez, 337 S.W.3d at 479.

B.    Applicable Law

      Under Texas law, a person commits the offense of evading arrest or

detention “if he intentionally flees from a person he knows is a peace officer or

federal special investigator attempting lawfully to arrest or detain him.” TEX.

PENAL CODE § 38.04(a). If “the actor uses a vehicle . . . while the actor is in

flight,” the offense becomes a third-degree felony. Id. § 38.04(b)(2)(A); see also

Adetomiwa v. State, 421 S.W.3d 922, 927 (Tex. App.—Fort Worth 2014, no pet.)

(holding that punishment scheme of section 38.04 provides that evading arrest is a

third degree felony if actor uses vehicle in flight). “If proven by the evidence, a

refusal to comply with a lawful order, knowing the order came from a police

officer, constitutes the offense of evading detention.” Green v. State, 892 S.W.2d



                                         8
217, 218 (Tex. App.—Texarkana 1995, pet. ref’d); see also Redwine v. State, 305

S.W.3d 360, 362 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (“A person

commits a crime under Section 38.04 only if he knows a police officer is

attempting to arrest him but nevertheless refuses to yield to a police show of

authority.”).

C.    Analysis

      To sustain a conviction, the State was required to prove beyond a reasonable

doubt that, while using a vehicle, Brown intentionally fled from a person he knew

was a peace officer attempting to lawfully arrest or detain him. TEX. PENAL CODE

§ 38.04(a); see also Redwine, 305 S.W.3d at 362. On appeal, Brown contends

there was insufficient evidence from which the jury could conclude beyond a

reasonable doubt that he intentionally fled knowing that Officers Glover and

Jacobs were attempting to arrest or detain him.

      Officers Glover and Jacobs both testified that they were wearing HPD

uniforms and their HPD badges were visible while they were working at the 44

Club. Both officers recounted three interactions with Brown at the 44 Club in the

hours leading up to their standoff. In the course of those three interactions, the

officers identified themselves to Brown as police officers. Officer Glover also

testified that Brown teased him about being a police officer, further supporting an

inference that Brown knew the uniformed men were peace officers. We conclude



                                         9
that such evidence, viewed in the light most favorable to the verdict, would enable

a rational trier of fact to conclude beyond a reasonable doubt that Brown knew

Officers Glover and Jacobs were peace officers.

         There was also sufficient evidence from which the jury could have found

beyond a reasonable doubt that Brown knew Officers Glover and Jacobs were

attempting to arrest or detain him. First, the evidence showed that, by the time

Officers Glover and Jacobs began yelling at Brown to drop his gun and get on the

ground, Brown had already been warned by the officers that he would be arrested

for trespassing should he return to the 44 Club that night.

         Second, the jury could infer from the evidence that Brown heard Officer

Glover’s repeated commands. Officer Glover testified that he was within 20 to 25

yards of Brown, with his gun drawn, as he repeatedly ordered Brown to drop the

shotgun and get on the ground.         Officer Glover testified that Brown did not

respond to his commands and instead “just stood there looking at [the officers].”

Ultimately, rather than respond to the officers’ lawful orders, Brown got back into

his Cadillac and drove away at what Officer Glover described as a high rate of

speed.

         Third, the jury could infer that Brown’s intent to evade arrest was not merely

fleeting or momentary. Officer Davila, who was dispatched to the scene, testified

that he saw what he believed to be Brown’s red Cadillac driving in the opposite



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direction at a high rate of speed as he approached the 44 Club. He also testified

that he later found Brown’s car parked crookedly and with its tires partially off the

driveway, from which the jury could infer that Brown remained hurried even upon

arriving there. Based on such evidence, viewed in the light most favorable to the

verdict, and reasonable inferences therefrom, a rational trier of fact could conclude

beyond a reasonable doubt that Brown knew peace officers were attempting to

detain him and he intentionally fled. See Green, 892 S.W.2d at 218 (evidence that

defendant ran to front door of house after officer instructed defendant to approach

patrol car sufficient to support conviction for evading detention).

      Notwithstanding such evidence, Brown relies on Griego v. State, 345

S.W.3d 742 (Tex. App.—Amarillo 2011, no pet.), to argue that insufficient

evidence supports his conviction because there was no pursuit of his vehicle, no

one attempted to “chase or subdue” him, and no one told Brown to “stop” or

informed his that he was “under arrest.” Id. at 751. In Griego, patrol officers

attempted to pull over a driver following reports that he had a gun. Id. at 746, 749.

At trial, the officers conceded that the driver might not have seen their patrol car

behind him. Id. at 751. An officer’s dash cam video showed that officers were

only directly behind the driver for a matter of seconds before the driver pulled into

a driveway, got out of his car holding a beer, and casually walked towards a

house—suggesting he had not noticed the pursuing officers. Id. at 753. Based on



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such evidence, the court concluded that insufficient evidence supported a

conviction for evading arrest while driving a vehicle because a rational jury could

reasonably doubt whether the driver knew the officers were attempting to arrest or

detain him while he was driving his vehicle. Id. at 754.

      This case is different from Griego. Unlike in Griego, Brown had been

warned that he would be arrested for trespassing should he return to the 44 Club.

When Brown did return, the officers repeatedly and from a short distance ordered

Brown to drop his shotgun and get on the ground. Brown just stood there making

eye contact with the officers until his passenger suggested that he leave. There was

no such evidence in Griego.

      We overrule Brown’s second issue.

                                 Closing Argument

      In his first issue, Brown contends that the trial court erred in not granting a

mistrial following purportedly impermissible closing argument by the State. The

State responds that (1) Brown failed to preserve any such error for review, (2) even

assuming otherwise, the trial court correctly did not grant a mistrial because the

State’s argument was a reasonable deduction from the evidence, and (3) even if

improper, the trial court did not abuse its discretion by not ordering a mistrial.




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A.     Applicable Law

       “The law provides for, and presumes, a fair trial free from improper

argument by the State.” Thompson v. State, 89 S.W.3d 843, 850 (Tex. App.—

Houston [1st Dist.] 2002, pet. ref’d) (citing Long v. State, 823 S.W.2d 259, 267

(Tex. Crim. App. 1991) (en banc)). Proper jury argument must fall within one of

four areas: (1) summation of the evidence; (2) reasonable deduction from the

evidence; (3) answer to argument of opposing counsel; and (4) plea for law

enforcement.     Alejandro v. State, 493 S.W.2d 230, 231–32 (Tex. Crim. App.

1973).

       If a trial judge sustains an objection to improper jury argument, the

defendant must request an instruction to disregard and move for a mistrial in order

to preserve error. McGinn v. State, 961 S.W.2d 161, 165 (Tex. Crim. App. 1998)

(en banc). When a party seeks and receives relief in response to an objection or

request for an instruction to disregard and does not thereafter move for mistrial, he

preserves nothing for review. Mathis v. State, 67 S.W.3d 918, 926–27 (Tex. Crim.

App. 2002); see also Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996)

(“[A] defendant’s ‘right’ not to be subjected to incurable erroneous jury arguments

is one of those rights that is forfeited by a failure to insist upon it.”).




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B.    Analysis

      During closing argument, the State reminded the jury that Brown had been

given multiple chances and been warned by the officers before he left the 44 Club

and returned in his red Cadillac with a shotgun. The prosecutor noted that Brown

had bragged about making more money than the officers and then posited about the

reason Brown returned to the club: “You know what? I think the defendant wanted

to show off. I think he showed back up just to show off. I don’t know. To come

back —.”      Defense counsel interrupted, “Objection, your Honor.          That’s

speculation.” The trial court responded, “Sustained. Jurors, disregard,” and the

State continued closing argument.

      “To preserve error in prosecutorial argument, a defendant must pursue to an

adverse ruling his objections to jury argument.” Archie v. State, 221 S.W.3d 695,

699 (Tex. Crim. App. 2007). Here, however, defense counsel did not request a

mistrial. Because Brown sought and received relief in response to his objection

and did not then move for a mistrial, nothing is preserved for our review. Id. at

699; Mathis, 67 S.W.3d at 926–27; Cockrell, 933 S.W.2d at 89 (holding that, to

preserve issue for appeal, defendant must pursue his objections to jury argument to

an adverse ruling).

      Accordingly, we overrule Brown’s first issue.




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                                    Conclusion

      We affirm the trial court’s judgment.




                                              Rebeca Huddle
                                              Justice

Panel consists of Justices Keyes, Brown, and Huddle.

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




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