                               Fourth Court of Appeals
                                      San Antonio, Texas
                                  MEMORANDUM OPINION
                                         No. 04-13-00906-CR

                                            Luis FRANCO,
                                               Appellant

                                                   v.

                                         The STATE of Texas,
                                               Appellee

                      From the 226th Judicial District Court, Bexar County, Texas
                                    Trial Court No. 2013-CR-3379
                               Honorable Dick Alcala, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: June 10, 2015

AFFIRMED AS REFORMED

           Appellant Luis Franco was convicted by a jury of evading arrest or detention with a vehicle

and the jury assessed punishment at three years’ confinement in the Institutional Division of the

Texas Department of Criminal Justice. On appeal, Franco contends the evidence is insufficient to

support his conviction and that the trial court erred in assessing attorney’s fees as court costs. We

reform the trial court’s judgment to delete the imposition of attorney’s fees and affirm the judgment

as reformed.
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                            FACTUAL AND PROCEDURAL BACKGROUND

        On December 26, 2012, two San Antonio police officers initiated a traffic stop after

witnessing Franco change lanes without signaling. How far Franco traveled prior to stopping his

vehicle, and whether Franco ran from the vehicle and resisted arrest, were highly contested issues

at trial. The officers reported that after the patrol vehicle’s emergency lights were activated,

Franco slightly accelerated his speed and failed to pull his vehicle to the side of the road. The

officers responded by utilizing the vehicle’s siren, horn, and spotlight to illuminate the interior of

the vehicle. Franco, however, never indicated his intent to stop the vehicle. After passing several

locations that the officers considered safe places to stop, Franco finally pulled into his driveway

in the 200 block of Dashiell. The officers testified that Franco immediately ran from the vehicle

and resisted their attempts to detain him.

        Franco’s passenger, however, told a very different story. She relayed that Franco pulled

into the first safe location and that he waited in the vehicle until the officers “yanked” Franco from

the front seat.

        The jury ultimately returned a verdict of guilty and assessed punishment at three years’

confinement in the Institutional Division of the Texas Department of Criminal Justice. Franco

raises two issues on appeal: (1) the evidence is insufficient to support his conviction, and (2) the

trial court erred in assessing attorney’s fees as court costs.

        We turn first to Franco’s sufficiency of the evidence issue.

                       EVADING ARREST OR DETENTION WITH A VEHICLE

A.      Arguments of the Parties

        Franco argues that he stopped his vehicle in the first place that was safe for him to do so—

his driveway. Franco contends that when the officer activated his emergency lights, Franco

decreased his speed and attempted to find a safe place to stop. His asserts that his driveway, and
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ultimate stopping location, was three blocks from the original location where the officer activated

his lights. Accordingly, Franco alleges the evidence is insufficient to support the State’s allegation

that he attempted to flee.

       The State counters the evidence supports that Franco did not promptly stop after the

officers signaled for him to pull over. To the contrary, the record substantiates Franco intentionally

evaded the officers’ vehicle and drove to his residence so that he could avoid the vehicle being

impounded.

B.     Standard of Review

       When reviewing the legal sufficiency of the evidence, an appellate court determines

whether, viewing “all the evidence in the light most favorable to the verdict, any rational trier of

fact could have found the essential elements of the offense beyond a reasonable doubt.” Hardy v.

State, 281 S.W.3d 414, 421 (Tex. Crim. App. 2009); accord Brooks v. State, 323 S.W.3d 893, 899

(Tex. Crim. App. 2010); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hooper v. State,

214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

       We defer to the jury’s assessment of the credibility of the witnesses “and the weight to be

given their testimony,” Brooks, 323 S.W.3d at 899, and allow for reasonable inferences from the

evidence presented. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007); see also

TEX. CODE CRIM. PROC. ANN. art. 38.04 (West 1979) (stating that “[t]he jury, in all cases, is the

exclusive judge of the facts proved, and of the weight to be given to the testimony” except where

provided otherwise by law); Jackson, 443 U.S. at 319 (reiterating it is strictly the province of the

jury “fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts”). The key question is whether “the evidence

presented actually supports a conclusion that the defendant committed the crime that was charged.”

Williams, 235 S.W.3d at 750. This legal sufficiency standard applies equally to both direct and
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circumstantial evidence. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Hooper,

214 S.W.3d at 13; King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000).

C.     Evading Arrest

       Texas Penal Code section 38.04(a) provides that a person commits the offense of evading

arrest or detention while using a vehicle if (1) “he intentionally flees” (2) “from a person he knows

is a peace officer” (3) who is “attempting to lawfully arrest or detain him” and the offense is

enhanced to a third degree felony if “the actor uses a vehicle while the actor is in flight.” TEX.

PENAL CODE ANN. § 38.04(a), (b)(2)(A) (West Supp. 2014); see Ex parte Jones, 440 S.W.3d 628,

629–31 (Tex. Crim. App. 2014) (reciting the legislative history of section 38.04); Baines v. State,

418 S.W.3d 663, 670 (Tex. App.—Texarkana 2010, pet. ref’d); Lopez v. State, 415 S.W.3d 495,

496–97 (Tex. App.—San Antonio 2013, no pet.). “The relevant inquiry is whether there was an

attempt to flee or delay the detention. The length and speed of the chase are factors in considering

whether there was an attempt to escape, but are not determinative by themselves.” Baines, 418

S.W.3d at 670. Importantly, as the Mayfield Court explained, “fleeing slowly is still fleeing.”

Mayfield v. State, 219 S.W.3d 538, 541 (Tex. App.—Texarkana 2007, no pet.).

D.     Testimony at Trial

       Because Franco contends the evidence is insufficient to support his conviction, we provide

a more in-depth discussion of the testimony before the jury.

       1.      Officer Chad Wedeking

       Officer Chad Wedeking was the first witness called by the State. On December 26, 2012,

Officer Wedeking was traveling in the passenger seat of a marked patrol car being driven by his

partner, Officer Jonathan Hoggard. At approximately 8:20 p.m., Officer Wedeking observed a

Chevy Suburban make a lane change from the inside lane to the outside lane without using a turn

signal. Officer Hoggard activated the overhead emergency lights and the siren. Officer Wedeking
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testified that the vehicle did not stop, but actually “slightly accelerated.” In response, Officer

Wedeking activated the emergency air horn and Officer Hoggard turned on the spotlight allowing

the officers to “see what’s going on inside the [defendant’s] vehicle.” Officer Wedeking described

seeing Franco look into his rearview mirror, appeared to acknowledge the officers, and then

continued driving.

       Irrespective of the officers’ actions, Franco continued to travel down South Hackberry and

passed at least three side streets before turning right on Dashiell. According to Officer Wedeking,

after approximately six blocks, Franco pulled into a driveway in the 200 block of Dashiell and “as

soon as the vehicle came to a stop the driver’s side door came open and he was out.” After seeing

Franco resist Officer Hoggard’s attempts to detain him, Officer Wedeking moved to assist Officer

Hoggard. Once Franco was under control and seated on the curb, he apologized to the officers

explaining, “Sorry, sorry, I just didn’t want my vehicle to be towed because I was driving on a

suspended license.”

       During cross-examination, Officer Wedeking conceded that his report did not indicate that

Franco sped up after the emergency lights were activated. Officer Wedeking also acknowledged

that Franco was within five miles of the posted speed limit at all times. When defense counsel

questioned Officer Wedeking about Franco’s attempt to pull over in a safe place, Officer Wedeking

explained that Franco never gave any indication that he was intending to pull over—he did not

slow down, use his blinker, initiate his hazard lights, or use a hand signal.

       2.      Officer Jonathan Hoggard

       Officer Hoggard was the State’s only other witness. Officer Hoggard testified that he

initiated a traffic stop after Franco failed to signal when changing lanes of traffic. According to

Officer Hoggard, when he initiated the overhead emergency lights, Franco “accelerated slightly

and began to travel southbound on Hackberry.” After activating the siren, the horn, and the
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spotlight, Officer Hoggard described Franco looking in his rearview mirror and side-view mirror

and seeing the officers but apparently refusing to pull over despite passing several well-lit, safe

areas.

         Franco ultimately pulled into the driveway of his residence traveling “faster than you

normally pull in.” Officer Hoggard described Franco slamming on the brakes and the driver door

flying open. Officer Hoggard was able to cut Franco off as he tried to “round his door towards the

house.” As Officer Hoggard tried to gain control of the suspect, Franco continued to “pull away”

in a combative and resisting manner. Officer Hoggard further testified that Franco kept saying

“I’m sorry, I’m sorry, sir, I just wanted to get home. I’m sorry, sir. I didn’t want to get my vehicle

towed. I’m on a suspended license or my driver’s license is invalid right now.”

         3.     Aarti Desai

         The only witness called by the defense was Aarti Desai, Franco’s girlfriend and the

passenger in the front seat of Franco’s vehicle. Desai authenticated several photographs of the

streets and route driven by Franco and the officers on the night in question. Desai testified that

she did not realize the officers were following their vehicle until the emergency lights were

activated. She further disagreed with the location identified by the officers as to where the stop

was initiated. Moreover, in direct contradiction to the officers’ testimony, Desai was adamant that

when the lights were activated, Franco decreased his speed. Desai did not recall any sirens or the

officers shining a spotlight into their vehicle.

         When asked about what transpired when Franco stopped his vehicle in the driveway, Desai

resolutely asserted that Franco “parked the truck and sat there.” He did not attempt to leave the

vehicle prior to “the officer yank[ing] him out.”

         On cross-examination, Desai was unyielding in her claims there was no safe place for

Franco to pull over prior to the driveway on Dashiell.
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              There’s no median, there’s no shoulder to pull over or—if we pull over on
       Hackberry, there’s cars that pass through so you—if the officer would have went
       to—if we pulled over on Hackberry and the officer would have got out of the car
       there would have been traffic coming. There’s no shoulder, there’s no median to
       pull over.
               ....
              When you turn on Dashiell there’s cars parked all on the side. There’s no—
       some houses don’t even have driveways to park their cars. Some do. So the safest
       and the best place to park was at our house and just park in the driveway.

Desai maintained that it was the day after Christmas, the streets were full, and their driveway was

the best place to park. She was also insistent that Franco sat in the vehicle until the officers

“yanked” him out.

E.     Analysis

       The jury was presented with directly conflicting testimony—the officers’ version of events

versus Desai’s. The jury could reasonably infer that Franco was aware the officers were attempting

to detain him but that he intended to flee to the driveway of this house. See Lopez, 415 S.W.3d at

497. Based on their verdict, the jury clearly chose to believe the officers’ testimony over Desai’s.

       We must defer to the jury’s assessment of the credibility of the witnesses, Brooks, 323

S.W.3d at 899, and their resolution of conflicts in the testimony, Jackson, 443 U.S. at 319. After

viewing all the evidence in the light most favorable to the verdict, we conclude the record contains

sufficient evidence to support the jury’s verdict. Accordingly, we overrule Franco’s first issue.

                                  ENHANCEMENT PARAGRAPH

A.     Arguments of the Parties

       Franco also contends the State failed to introduce his prior conviction during the guilt-

innocence phase of the trial and, thus, the jury was not asked to make a finding on the previous

conviction. Without proof, the jury could not find Franco guilty of the third degree evading




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arrest—repeater and thus, Franco contends the judgment should be reformed to reflect a conviction

for state jail felony evading arrest.

B.      Texas Penal Code Section 38.04(b)(2)(A)

        Franco relies on Calton v. State, 176 S.W.3d 231, 234 (Tex. Crim. App. 2005), for the

proposition that “[t]he plain language of § 38.04 reveals that a prior conviction for evading arrest

is an element of the offense of third-degree evading arrest. It, therefore, must be proved at the

guilt phase of trial.” Section 38.04(b)(2)(A), however, was amended after the Court of Criminal

Appeals’ decision in Calton. See Act of May 27, 2011, 82d Leg., R.S., ch. 920, § 3, sec. 38.04(b),

2011 Tex. Gen. Laws 2321, 2322. The use of a vehicle now elevates evading arrest to a third-

degree felony, without the added requirement of proof of a prior conviction, thus Franco was

properly charged with a third-degree felony. See TEX. PENAL CODE ANN. § 38.04(b)(2)(A); accord

Jenkins v. State, 454 S.W.3d 712, 713, 715 (Tex. App.—Corpus Christi 2015, no pet.) (citing Ex

parte Jones, 440 S.W.3d 628, 629 (Tex. Crim. App. 2014)); Garrett v. State, No. 05-13-01480-

CR, 2014 WL 7476409, at *1, (Tex. App.—Dallas Dec. 31, 2014, no pet.) (mem. op., not

designated for publication); Thomas v. State, No. 06-14-00002-CR, 2014 WL 7140235, at *1 (Tex.

App.—Texarkana Dec. 16, 2014, pet. ref’d) (mem. op., not designated for publication); State v.

Sneed, No. 09-14-0232-CR, 2014 WL 4755502, at *3, (Tex. App.—Beaumont Sept. 24, 2014, pet.

ref’d) (mem. op., not designated for publication). Because the State was not required to introduce

Franco’s prior conviction during the guilt-innocence phase of the trial, the evidence supports his

third-degree felony conviction.

                                         ATTORNEY’S FEES

        Franco contends the record fails to establish his ability to pay attorney’s fees as part of the

court costs. The State agrees that Franco’s indigent status precluded the assessment of attorney’s

fees as court costs. We, therefore, sustain this issue.
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       We reform the judgment and the bill of costs to delete the assessment of the attorney’s fees

against Franco and affirm the judgment as reformed. See Solomon v. State, 392 S.W.3d 309, 311

(Tex. App.—San Antonio 2012, no pet.) (op. on reh’g).


                                                 Patricia O. Alvarez, Justice


DO NOT PUBLISH




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