Affirmed and Memorandum Opinion filed January 28, 2014.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-13-00100-CR

                  ORLANDO DEWAN GODFREY, Appellant
                                         V.

                       THE STATE OF TEXAS, Appellee

                   On Appeal from the 182nd District Court
                           Harris County, Texas
                       Trial Court Cause No. 1343252

                 MEMORANDUM                      OPINION


      A jury convicted appellant Orlando Dewan Godfrey of evading arrest or
detention with a motor vehicle, and the trial court assessed punishment at two
years’ confinement, probated for two years. Appellant challenges his conviction in
two issues, contending the evidence is legally insufficient and the trial court erred
by excluding evidence. We affirm.
                      I.     SUFFICIENCY OF THE EVIDENCE

      In his first issue, appellant contends the evidence is “insufficient to prove
intent to evade arrest.” We hold that there is sufficient evidence for a jury to find
beyond a reasonable doubt that appellant intentionally fled from a person he knew
was a peace officer attempting to lawfully arrest or detain him.

A.    Standard of Review

      “In determining whether the evidence is legally sufficient to support a
conviction, a reviewing court must consider all of the evidence in the light most
favorable to the verdict and determine whether, based on that evidence and
reasonable inferences therefrom, a rational fact finder could have found the
essential elements of the crime beyond a reasonable doubt.” Winfrey v. State, 393
S.W.3d 763, 768 (Tex. Crim. App. 2013). (quotations omitted). The jury is the
sole judge of the witnesses’ credibility and the weight to be given their testimony.
Id. “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.” Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011) (quotation
omitted). “[P]roof of a culpable mental state generally relies on circumstantial
evidence.” Dillon v. State, 574 S.W.2d 92, 94 (Tex. Crim. App. [Panel Op.] 1978).
Intent may be determined from a defendant’s words, acts, and conduct. Smith v.
State, 965 S.W.2d 509, 518 (Tex. Crim. App. 1998).

B.    Evidence at Trial

      The State and appellant each presented one witness at trial. First, Houston
Metro Police Officer Robert Smith testified that he was driving in his marked
patrol car south on State Highway 288 when he observed two cars—a Chevrolet



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Corvette and a Chevrolet Camaro convertible with its top down—speeding and
racing. Appellant was driving the Camaro.

      Smith pursued the cars from a distance; he kept track of the cars by watching
their taillights. Eventually, he got within fifty or seventy-five feet of the Camaro,
with his car’s siren and flashing lights activated. Using his car’s P.A. system,
Smith told the driver of the Camaro, “You better pull it over.” He saw appellant
look in the rearview mirror. The car in front of the Camaro pulled over, and then
the Camaro sped off at a high rate of speed. Smith pursued. Without signaling, the
Camaro moved to the left across three lanes of traffic at a high rate of speed,
passed some more vehicles, and then changed lanes to its right. Eventually the
brake lights of the Camaro came on, and it slowed down. Officer Smith pulled up
behind the Camaro, and the Camaro stopped on the right shoulder.

      Smith arrested appellant. At some point, Smith asked appellant why he did
not stop, and appellant said it was because he did not see Smith. Appellant’s
girlfriend, Delta Scott, was a passenger in the Camaro. Smith testified that Scott
told him she was telling appellant to stop and that she was scared. Scott testified at
trial that she did not say anything to Officer Smith. She testified that the music in
the Camaro was loud, and she could not hear very well. She testified that appellant
pulled over as soon as they noticed the police car behind them. A video camera in
Officer Smith’s car recorded the incident, and a redacted version of the video was
played for the jury.

C.    Sufficiency of the Evidence of Evading Arrest

      Section 38.04 of the Texas Penal Code establishes the elements of the
offense of evading arrest or detention: “A person commits an offense if he
intentionally flees from a person he knows is a peace officer or federal special
investigator attempting to arrest or detain him.” Tex. Penal Code Ann. § 38.04(a).
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The offense is a third degree felony if “the actor uses a vehicle while the actor is in
flight.” Tex. Penal Code Ann. § 38.04(b)(2).1 Thus, to convict appellant of the
charged offense, “the State had to prove appellant, while using a vehicle,
intentionally fled from a person he knew to be a peace officer attempting lawfully
to arrest or detain him.” Redwine v. State, 305 S.W.3d 360, 362 (Tex. App.—
Houston [14th Dist.] 2010, pet. ref’d). A person violates 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.” Id.

       When evaluating the sufficiency of the evidence to prove an appellant’s
intent for evading arrest in a vehicle, the speed, distance, and duration of the
pursuit may be factors to consider. Griego v. State, 345 S.W.3d 742, 751 & n.10
(Tex. App.—Amarillo 2011, no pet.) (collecting cases). But “no particular speed,
distance, or duration is required to show the requisite intent if other evidence
establishes such intent.” Id. In Griego, for example, the court of appeals found the
evidence insufficient when the speed of the pursuit was unremarkable; the duration
was mere seconds; the route of the pursuit, given the parties’ locations and the
characteristics of the roads, would have made it “physically unlikely or impossible
that appellant could have seen the officers turn around to pursue him”; and the
defendant’s conduct and statements upon exiting his car at his destination (a
residence) were not necessarily consistent with guilt. See id. at 754.2

       1
         Appellant notes that there are two irreconcilable amendments to this statute, with one
designating the offense a state jail felony and the other a third degree felony. Appellant
concedes that the third degree felony amendment is controlling because it was enacted several
days after the other amendment, citing Texas Government Code Annotated § 311.025(b).
       2
           After a full review of the evidence, the court concluded,
       Evidence that the officers were directly behind appellant for one-half to one block
       such that he would have had a maximum of seventeen seconds in which to
       determine that the officers were attempting to arrest or detain him and respond
       appropriately is insufficient in character, weight, and amount to enable the jury to
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       This court also found the evidence insufficient in Redwine, even though the
defendant admitted to turning onto a county road to avoid contact with a patrol
vehicle, because there was only equivocal testimony from one of the officers about
whether the patrol vehicle’s lights were flashing during the pursuit. See 305
S.W.3d at 364, 368. Thus, there was no “show of authority” for a jury to rationally
conclude that the defendant knew the officers were trying to arrest or detain him.
See id.

       On the other hand, in Hobyl v. State, the First Court of Appeals found the
evidence legally and factually sufficient to support a conviction for evading arrest
in a vehicle. 152 S.W.3d 624, 627–28 (Tex. App.—Houston [1st Dist.] 2004), pet.
dism’d, 193 S.W.3d 903 (2006). The arresting officer testified that he was pacing
Hobyl, who was on a motorcycle traveling at about seventy-five miles per hour in
the left lane of Highway 61. Id. at 625. At about the same time the officer turned
on his emergency lights and siren, Hobyl increased his speed to 110 miles per
hour. Id. at 626. The officer testified that Hobyl looked in his side mirrors during
the pursuit, which lasted about three miles. Id. at 625. Then, the officer pulled up
next to Hobyl in an adjacent lane and motioned for Hobyl to stop. Id. at 626. Soon
thereafter, Hobyl stopped on the right-hand shoulder. Id. Hobyl testified that he
could not see the patrol vehicle because he was in a crouched position, and he
could not hear the siren due to noise from his motorcycle, the wind, and flapping
from his rain suit. Id.

       This case is most similar to Hobyl. Officer Smith activated the flashing
lights of his patrol vehicle, blasted the siren, and instructed appellant to “pull over”


       conclude beyond a reasonable doubt that appellant knew the officers were
       attempting to arrest or detain him.

Griego, 345 S.W.3d at 754.

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through the P.A. system while Smith was within fifty feet of appellant’s top-down
convertible.   Smith testified that appellant looked in the rearview mirror, so
appellant would have known that Smith was attempting to pull him over. In
response to Smith’s shows of authority, however, appellant sped away and
traversed multiple lanes of traffic without signaling. Although appellant indeed
pulled over within a minute of this encounter, the duration factor is not dispositive
and certainly not as favorable as it was in Griego. Further, we note that the jury
could have disbelieved appellant’s self-serving statement that he did not see Smith,
as well as his girlfriend’s similar testimony. See, e.g., Chambers v. State, 805
S.W.2d 459, 461 (Tex. Crim. App. 1991) (“As factfinder, the jury is entitled to
judge the credibility of witnesses, and can choose to believe all, some, or none of
the testimony presented by the parties.”).      The totality of the circumstantial
evidence would have enabled a rational jury to find beyond a reasonable doubt that
appellant intentionally fled from a person he knew to be a police officer attempting
lawfully to arrest him.

      Accordingly, the evidence is sufficient to sustain appellant’s conviction.
Appellant’s first issue is overruled.

                          II.    EXCLUSION OF EVIDENCE

      In his second issue, appellant contends the trial court erred by excluding
evidence consisting of a portion of Smith’s video and audio recording that the State
redacted. Appellant contends that the evidence was admissible under the rule of
optional completeness or Rule 107 of the Texas Rules of Evidence. We hold that
the trial court did not abuse its discretion in concluding that Rule 107 did not
require admission.




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A.    Excluded Evidence

      Appellant does not identify what the redacted portion of the video actually
shows, nor does he quote or paraphrase what Smith or appellant say during the
video. However, the unredacted video was admitted for record purposes, and we
have reviewed it. The excluded portion of the video is about five minutes long and
is mostly silence or undecipherable. Smith appears to be talking with a fellow
officer about unrelated or tangential matters. While driving, Smith tells appellant
that Smith will not be putting a seizure on appellant’s vehicle. Then, Smith says,
“Since you don’t have a criminal record, I don’t see this sticking on you as a
felony. It’ll get downgraded, but that’s between you and the courts, okay? But
man, whenever you see lights, you got to stop.” Appellant cannot be heard making
any statements.

B.    Standard of Review and the Rule of Optional Completeness

      A trial court’s decision to exclude evidence is reviewed for an abuse of
discretion. Ramos v. State, 245 S.W.3d 410, 417–18 (Tex. Crim. App. 2008). A
trial court abuses its discretion only when the decision lies outside the zone of
reasonable disagreement. Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App.
2007).

      Rule 107 of the Texas Rules of Evidence is a rule of admissibility that
“permits the introduction of otherwise inadmissible evidence when that evidence is
necessary to fully and fairly explain a matter ‘opened up’ by the adverse party.”
Id. at 218.3 Its purpose is to “reduce the possibility of the jury receiving a false

      3
          The Rule provides:
      When part of an act, declaration, conversation, writing or recorded statement is
      given in evidence by one party, the whole on the same subject may be inquired
      into by the other, and any other act, declaration, writing or recorded statement
      which is necessary to make it fully understood or to explain the same may also be
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impression from hearing only part of some act, conversation, or writing.” Id.
However, “Rule 107 does not permit the introduction of other similar, but
inadmissible, evidence unless it is necessary to explain properly admitted
evidence.” Id.

C.     Analysis

       Appellant argues that he desired to admit the unredacted video to rebut a
false impression, but it is not clear from the briefing on appeal or argument at trial
what false impression he sought to rebut. He argues on appeal, however, that the
excluded evidence “would have corrected the false impression by showing the jury
that Appellant denied that he saw Smith and that Smith thought the case might not
lead to a conviction.” We disagree with this assessment of the video and defer to
the trial court’s ruling.

       First, at no point during the excluded video can appellant be heard to say
anything, let alone that appellant denied seeing Smith. So the video would not
have rebutted a false impression by showing that appellant denied seeing Smith.
Further, there was actually no false impression on this issue because Smith
testified, “When he was in the backseat, I asked him why he didn’t stop and his
statement was that he didn’t see me.” Thus, Smith admitted unequivocally that
appellant denied seeing Smith.

       Second, at no point during the excluded video did Smith say the case might
not lead to a conviction. Smith said he did not think the charge would be “sticking
on you as a felony.” He expressed his view that the case would be “downgraded,”

       given in evidence, as when a letter is read, all letters on the same subject between
       the same parties may be given. “Writing or recorded statement” includes
       depositions.

Tex. R. Evid. 107.

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not that appellant would be acquitted. Further, to the extent any false impression
was created regarding Smith’s belief about appellant being convicted, trial counsel
initiated the dialogue during cross-examination.4               Rule 107 only requires the
admission of evidence to correct a false impression created by an adverse party—
here, the State. See Walters, 247 S.W.3d at 218; see also Mendiola v. State, 61
S.W.3d 541, 545–46 (Tex. App.—San Antonio 2001, no pet.) (Rule 107 did not
require admission of the fact that an indictment had been dismissed; although the
State introduced evidence of an extraneous offense, it was the defendant who
attempted to introduce the fact that appellant had been indicted; dismissal of the
indictment would not have corrected a misleading impression of appellant’s having
committed the extraneous offense).

       Appellant relies on the Walters case, but the facts of that case are not on
point. See Walters, 247 S.W.3d at 220–21 (holding it was error to exclude the tape
of a 911 call when the officers’ testimony left the impression that the defendant
had not given any explanation for the shooting immediately afterward, but the
excluded 911 call showed that the defendant said he shot the victim in self
defense). The excluded portion of the video would not have countered or helped
explain any impression created by Smith’s direct testimony or the unredacted
portion of the video. Accordingly, the trial court did not abuse its discretion by
concluding that the rule of optional completeness did not require admission of the
redacted portion of the video.5

       Appellant’s second issue is overruled.
       4
          Counsel asked, “Did you ever tell the defendant that you did not think that the evading
arrest charge would stick?” Smith responded, “I don’t remember that.”
       5
         We note that the trial court stated its reason for excluding this evidence was irrelevancy.
On appeal, appellant does not challenge that ground for excluding the evidence; he makes no
argument for admission other than to correct a false impression under Rule 107. Accordingly,
our holding is limited to the Rule 107 issue.

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                              III.   CONCLUSION

      Having overruled both of appellant’s issues, we affirm the trial court’s
judgment.




                                     /s/    Sharon McCally
                                            Justice



Panel consists of Justices McCally, Busby, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).




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