                                                                      PD-0741-15
                 PD-0741-15                         COURT OF CRIMINAL APPEALS
                                                                     AUSTIN, TEXAS
                                                    Transmitted 6/17/2015 3:06:42 PM
                                                     Accepted 6/19/2015 11:17:08 AM
                                                                      ABEL ACOSTA
     NO._____________________________________                                 CLERK
  IN THE COURT OF CRIMINAL APPEALS OF TEXAS
                 AUSTIN, TEXAS


                  NO. 01-14-00434-CR
         IN THE COURT OF APPEALS FOR THE
              FIRST DISTRICT OF TEXAS
                    AT HOUSTON


               TRIAL COURT NO. 1368857
             IN THE 339TH DISTRICT COURT
              OF HARRIS COUNTY, TEXAS


                  ALEX GONZALEZ,
                           Appellant

                         VS.

                 THE STATE OF TEXAS,
                             Appellee


APPELLANT’S PETITION FOR DISCRETIONARY REVIEW


                               Nicole DeBorde
                               Texas Bar No. 00787344
                               JPMorgan Chase Bank Building
                               712 Main Street, Suite 2400
                               Houston, Texas 77002
                               (713) 228-8500
 June 19, 2015                 (713) 228-0034 fax
                               Email: Nicole@BSDLawFirm.com

                               Attorney for Appellant
                               Alex Gonzalez
                    STATEMENT REGARDING ORAL ARGUMENT

         Pursuant to TEX. R. APP. PROC. 68.4(c), appellant requests oral argument.

                                        TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................... 1

STATEMENT REGARDING ORAL ARGUMENT ............................................... 1

1INDEX OF AUTHORITIES.................................................................................... 2

IDENTITY OF PARTIES AND COUNSEL............................................................3

STATEMENT OF THE CASE .................................................................................. 5

STATEMENT OF PROCEDURAL HISTORY........................................................ 6

GROUND FOR REVIEW NUMBER ONE .............................................................. 7

Did the First Court of Appeals err by not construing the reach of the evading
arrest statute in order to decide whether the evidence presented in this case
actually establishes a violation of law?

ARGUMENT ............................................................................................................. 7

PRAYER FOR RELIEF ............................................................................................ 9

CERTIFICATE OF COMPLIANCE ....................................................................... 10

CERTIFICATE OF SERVICE ................................................................................ 11

APPENDIX ........................................................................................................... A-1




                                                           1
                                      INDEX OF AUTHORITIES

CASES                                                                                                        PAGE

Cary v. State, 05-13-01010-CR, -- S.W.3d --, 2015 WL 1346126, at *2 (Tex.
App.—Dallas Mar. 25, 2015, pet. filed)....................................................................8

Delay v. State, 443 S.W.3d 909, 912 (Tex. Crim. App. 2014)..............................7, 8

Gonzalez v. State, 01-14-00434-CR, 2015 WL 1825650, at *1 (Tex. App.—
Houston [1st Dist.] Apr. 21, 2015, no. pet. h.)......................................................6, 7

Shipp v. State, 331 S.W.3d 433 (Tex. Crim. App. 2011)..........................................7

Wright v. State, 201 S.W.3d 765 (Tex. Crim. App. 2006)....................................7, 8

STATUTES AND RULES

Tex. R. App. P. 66.3..............................................................................................7, 9

Tex. R. App. P. 68.4..................................................................................................3




                                                           2
IDENTITY OF PARTIES AND COUNSEL

      Pursuant to Tex. R. App. P. 68.4(a), a complete list of the names and all

interested parties is provided below.


Appellant:                      Alex Gonzalez
                                Garza West Unit
                                TDCJ No. 01932074
                                4250 Highway 202
                                Beeville, TX 78102

Presiding Judge:                Hon. Leslie Brock Yates
                                Visiting Judge
                                339th District Court
                                1201 Franklin, 14th Floor
                                Houston, TX 77002

Trial Prosecutor:               Adetayo Adeyiga
                                John Lewis
                                Assistant District Attorneys
                                Harris County District Attorney’s Office
                                1201 Franklin, 6th Floor
                                Houston, Texas 77002

Defense Counsel:                Gary Polland
                                Attorney at Law
                                2211 Norfolk, Suite 920
                                Houston, Texas 77098

State’s Appellate Counsel:      Hon. Devon Anderson
                                Harris County District Attorney
                                1201 Franklin
                                Houston, Texas 77002

Appellant’s Counsel:            Nicole DeBorde
                                Bires, Schaffer & DeBorde
                                Attorney at Law
                                         3
JPMorgan Chase Bank Building
712 Main Street, Suite 2400
Houston, Texas 77002




       4
TO THE COURT OF CRIMINAL APPEALS:

                         STATEMENT OF THE CASE

      On November 23, 2012, Deputy Laird, a Harris County patrol deputy, was

dispatched to investigate an assault at the Christus St. Catherine Hospital in Katy,

Texas. (3 R.R. 12). He was given suspect information and a vehicle description

that matched Appellant and notified two other deputies in the area that he would be

in route to the hospital. (3 R.R. 13). Deputy Luce made the scene and pulled

behind Appellant’s vehicle but did not immediately activate his vehicle’s sirens. (3

R.R. 26). At that point Deputy Laird pulled his gun out and pointed it directly at

Appellant’s vehicle while standing in the emergency room exit area of the hospital

parking lot. (3 R.R. 14). Appellant’s vehicle continued through the parking lot, in

what was characterized at trial as a low speed chase. After “a little over two

minutes” Appellant’s vehicle comes to a stop. (3 R.R. 28, State’s Exhibit 1). A

total of three Harris County Sheriff’s deputies were dispatched to the location

where the alleged crime was committed but only two testified at trial. The entire

incident was caught on video, which was admitted into evidence as State’s Exhibit

1.




                                         5
                     STATEMENT OF PROCEDURAL HISTORY

      Appellant was charged with evading arrest with a motor vehicle alleged to

have occurred on or about November 23, 2012. (C.R. 6). On December 10, 2012,

Appellant was indicted for the third degree offense of evading arrest with a motor

vehicle. (C.R. 13). The State alleged in the indictment that Appellant had been

twice before convicted of a felony offense for enhancement purposes. (C.R. 13).

Appellant was brought to trial before a jury on May 21, 2014, and entered a plea of

not guilty. (3 R.R. 4). The jury found Appellant guilty that same day. (3 R.R. at

51). The trial court found each enhancement paragraph true, as stipulated to by

Appellant, and assessed punishment at the minimum of twenty-five (25) years

confinement in the Texas Department of Criminal Justice – Correctional

Institutions Division. (4 R.R. 5; 7).

      The First Court of Appeals affirmed the trial court’s judgment. Gonzalez v.

State, 01-14-00434-CR, 2015 WL 1825650, at *1 (Tex. App.—Houston [1st Dist.]

Apr. 21, 2015, no. pet. h.). No motion for rehearing was filed. Appellant now

petitions this Honorable Court for discretionary review. Appellant presents one (1)

ground for review before this Honorable Court.




                                        6
                APPELLANT’S FIRST GROUND FOR REVIEW

Did the First Court of Appeals err by not construing the reach of the evading
arrest statute in order to decide whether the evidence presented in this case
actually establishes a violation of law?

                                   ARGUMENT

      The First Court of Appeals erred by not construing the reach of the evading

arrest statute in order to decide whether the evidence presented in this case actually

establishes a violation of law such that review is warranted pursuant to Tex. R.

App. P. 66.3(b).     Appellant complained on appeal the evidence was legally

insufficient to support his evading arrest conviction because, even when viewing

the evidence in the light most favorable to the conviction, it failed to actually

establish a violation of the law. Gonzalez v. State, 01-14-00434-CR, 2015 WL

1825650, at *1 (Tex. App.—Houston [1st Dist.] Apr. 21, 2015, no. pet. h.).

      In Delay v. State, this Court explained, “ . . . sometimes appellate review of

legal sufficiency involves simply construing the reach of the applicable penal

provision in order to decide whether the evidence, even when viewed in the light

most favorable to conviction, actually establishes a violation of the law.” See

Delay, 443 S.W.3d 909, 912 (Tex. Crim. App. 2014)(citing Shipp v. State, 331

S.W.3d 433 (Tex. Crim. App. 2011) (plurality opinion); Wright v. State, 201

S.W.3d 765 (Tex. Crim. App. 2006)(emphasis added).


                                          7
      In Wright v. State, supra, this Court conducted an analysis to determine

whether it should go beyond the plain language of the statute at issue to determine

if the language, when applied to the facts of the case, produced an absurd result.

Wright, 201 S.W.3d at 769 (conducting an analysis, “because the court of appeals

failed to”, to determine whether including unusable, toxic liquids in the weight of a

controlled substance would lead to an absurd result).      Appellant asserts it was

error for the First Court of Appeals to not conduct a similar analysis. In Cary v.

State, the Fifth Court of Appeals cited Delay, and explained “[b]ut sometimes, as in

this case, ‘appellate review of legal sufficiency involves simply construing the

reach of the applicable penal provision in order to decide whether the evidence

when viewed in the light most favorable to conviction, actually establishes a

violation of the law.’ ” Cary, 05-13-01010-CR, -- S.W.3d --, 2015 WL 1346126,

at *2 (Tex. App.—Dallas Mar. 25, 2015, pet. filed).

      In this case, the crime Appellant was sentenced to 25 years in prison for was

an alleged low-speed chase, which lasted less than two-and-a-half minutes, and

covered a very short distance in a parking lot. Appellant asserts this is an absurd

result and one of those “sometimes” cases that should involve construing the reach

of the applicable penal provision in order to decide whether the evidence when

viewed in the light most favorable to conviction, actually establishes a violation of

the law. See Wright, 201 S.W.3d 769. However, there is no guidance as to what
                                         8
exactly “sometimes” means in any applicable decision of this Court or any

intermediate appellate court.

      By not construing the reach of the evading arrest statute in order to decide

whether the evidence presented in this case actually establishes a violation of law,

the First Court of Appeals has decided an important question of state or federal law

that has not been, but should be, settled by this Court. Accordingly, review is

warranted pursuant to Tex. R. App. P. 66.3(b).

                                PRAYER FOR RELIEF

      WHEREFORE, PREMISES CONSIDERED, Appellant prays that this

Honorable Court grant this Petition for Discretionary Review. Following the grant

of review, Appellant prays that the judgment of the Court of Appeals be reversed

and rendered, or reversed and a new trial ordered, or the case remanded for further

review.

                                             Respectfully submitted,

                                             /s/ Nicole DeBorde
                                             Nicole DeBorde
                                             BIRES SCHAFFER AND DEBORDE
                                             Texar Bar No. 00787344
                                             712 Main Street, Suite 2400
                                             Houston, Texas 77002
                                             (713) 228-8500 – Telephone
                                             (713) 228-0034 – Facsimile
                                             Email: Nicole@BSDLawFirm.com
                                             Attorney for Appellant,
                                             Alex Gonzalez
                                         9
                        CERTIFICATE OF COMPLIANCE

      Pursuant to Rule 9 of the Texas Rules Appellate Procedure, the undersigned

counsel of record certifies that the Petition for Discretionary Review contains 1,580

words.


                                              /s/ Nicole DeBorde
                                              Nicole DeBorde




                                         10
                           CERTIFICATE OF SERVICE

      I hereby certify that a true copy of Appellant’s petition for discretionary

review has been either personally served upon or mailed by U.S. Postal Service

certified mail, return receipt requested, on June 17, 2015, to the following persons:

Devon Anderson
District Attorney
1201 Franklin, Suite 600
Houston, Texas 77002

State Prosecuting Attorney
P.O. Box 12405
Austin, Texas 78711

                                              Respectfully submitted,



                                              /s/ Nicole DeBorde
                                              Nicole DeBorde




                                         11
APPENDIX




   A-1
Opinion issued April 21, 2015




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-14-00434-CR
                           ———————————
                        ALEX GONZALEZ, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 339th District Court
                           Harris County, Texas
                       Trial Court Case No. 1368857



                         MEMORANDUM OPINION

      A jury convicted appellant, Alex Gonzalez, of the third-degree felony

offense of evading arrest. 1 After appellant pleaded true to the allegations in two


1
      See TEX. PENAL CODE ANN. § 38.04(a), (b)(2)(A) (Vernon Supp. 2014).
enhancement paragraphs, the trial court assessed punishment at twenty-five years’

confinement. In his sole issue, appellant contends that the State failed to present

sufficient evidence that he intentionally fled from a peace officer.

      We affirm.

                                    Background

      On November 23, 2012, Harris County Sheriff’s Department Deputy J. Laird

received a dispatch reporting an assault and requesting that he meet with the

complainant at the Christus St. Catherine Hospital in Katy. After Deputy Laird

spoke with the complainant, appellant became a suspect in the assault. Deputy

Laird informed two other deputies working in the area that appellant would be

returning to the hospital, and he gave the deputies a description of appellant and his

vehicle.

      Appellant returned to the hospital and began driving around the parking lot.

Deputy Laird testified that he stood by the entrance to the emergency room and

saw two other deputies in separate cars pull behind appellant in the parking lot.

Laird saw emergency lights flashing on both patrol cars. Appellant drove by

where Deputy Laird was standing; and Laird, who was in full uniform, drew his

firearm, in case appellant became violent, and shouted at appellant to stop.

Appellant then “accelerated and took off through the parking lot.” Deputy Laird

testified that the hospital’s parking lot was not busy at the time and that “[t]here



                                          2
were plenty of places to stop.” After a brief chase lasting “less than five minutes,”

appellant eventually stopped in the parking lot, and the deputies arrested him.

      Deputy B. Luce, one of the deputies involved in the chase, testified that

Deputy Laird gave him a description of appellant and appellant’s vehicle. Deputy

Luce stated that his patrol car contains a video recorder that begins recording when

he activates his car’s emergency lights. The trial court admitted a DVD recording

of Deputy Luce’s encounter with appellant. Deputy Luce activated his flashing

lights in an attempt to have appellant pull over so the officers could investigate the

assault allegations against him. Deputy Luce did not immediately activate his siren

because he wanted “to give [appellant] the benefit of the doubt,” but he eventually

did so when appellant failed to stop. Throughout the chase, which Deputy Luce

testified lasted a little over two minutes, appellant drove through “a few stop signs

and then the red light at the intersection.” Deputy Luce opined that appellant’s

failure to stop immediately was not an accident because he “had plenty of places to

stop” in the parking lot. Deputy Luce testified that appellant accelerated when

Deputy Laird drew his weapon and shouted at him to stop. Appellant finally

stopped his car when one of the three patrol units blocked the exit to the parking

lot and there was nowhere else for appellant to go.

      On the DVD recording of the chase, the flashing lights from Deputy Luce’s

patrol car are visibly reflected on appellant’s rear license plate throughout the



                                          3
incident. Deputy Luce turns on his siren approximately one minute into the chase,

which then lasts for approximately one more minute. The DVD recording shows

that appellant drove past Deputy Laird, who was in uniform and who had his

weapon drawn and was shouting at appellant to stop, drove over speed bumps and

through several stop signs within the parking lot, ran a red light to make a U-turn

back into the parking lot, and finally stopped his car when one of the deputies

blocked the exit to the parking lot. The recording corroborates Deputy Laird’s and

Deputy Luce’s testimony that the hospital’s parking lot was not crowded at the

time of the incident and that there were numerous empty parking spaces in which

appellant could have pulled over. The timestamp on the recording indicates that

the chase occurred at approximately 4:30 in the afternoon, and the recording also

reflects that it was still light outside and that, although it was cloudy, it was not

raining and visibility was good.

      The jury convicted appellant of the offense of evading arrest.             After

appellant pleaded true to the allegations in two enhancement paragraphs, the trial

court assessed his punishment at twenty-five years’ confinement. This appeal

followed.

                            Sufficiency of the Evidence

      In his sole issue, appellant contends that the State failed to present sufficient

evidence that he intentionally fled from a peace officer.



                                          4
      A. Standard of Review

      When reviewing the sufficiency of the evidence, we view all of the evidence

in the light most favorable to the verdict to determine whether any rational fact

finder could have found the essential elements of the offense beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);

Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that

Jackson standard is only standard to use when determining sufficiency of

evidence). The jurors are the exclusive judges of the facts and the weight to be

given to the testimony. Bartlett v. State, 270 S.W.3d 147, 150 (Tex. Crim. App.

2008). A jury, as the sole judge of credibility, may accept one version of the facts

and reject another, and it may reject any part of a witness’s testimony. See Sharp

v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); see also Henderson v.

State, 29 S.W.3d 616, 623 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d)

(stating jury can choose to disbelieve witness even when witness’s testimony is

uncontradicted).

      We may not re-evaluate the weight and credibility of the evidence or

substitute our judgment for that of the fact finder. Williams v. State, 235 S.W.3d

742, 750 (Tex. Crim. App. 2007). We afford almost complete deference to the

jury’s credibility determinations. See Lancon v. State, 253 S.W.3d 699, 705 (Tex.

Crim. App. 2008). We resolve any inconsistences in the evidence in favor of the



                                         5
verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); see also

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (“When the record

supports conflicting inferences, we presume that the factfinder resolved the

conflicts in favor of the prosecution and therefore defer to that determination.”).

Circumstantial evidence is as probative as direct evidence in establishing guilt, and

circumstantial evidence alone can be sufficient to establish guilt. Sorrells v. State,

343 S.W.3d 152, 155 (Tex. Crim. App. 2011) (quoting Clayton, 235 S.W.3d at

778). “Each fact need not point directly and independently to the guilt of the

appellant, as long as the cumulative force of all the incriminating circumstances is

sufficient to support the conviction.” Hooper v. State, 214 S.W.3d 9, 13 (Tex.

Crim. App. 2007).

      B. Evading Arrest

      To establish that appellant committed the offense of evading arrest, as

charged in the indictment, the State had to prove that appellant intentionally fled

from Deputy Luce, whom appellant knew to be a peace officer, while Luce was

lawfully attempting to detain appellant and that appellant used a motor vehicle

while in flight. See TEX. PENAL CODE ANN. § 38.04(a) (Vernon Supp. 2014) (“A

person commits an offense if he intentionally flees from a person he knows is a

peace officer or federal special investigator attempting lawfully to arrest or detain




                                          6
him.”); Mims v. State, 434 S.W.3d 265, 269 (Tex. App.—Houston [1st Dist.] 2014,

no pet.).

      “A person commits a crime under section 38.04 only if he knows that a

police officer is attempting to arrest him but nevertheless refuses to yield to a

police show of authority.” Thompson v. State, 426 S.W.3d 206, 209 (Tex. App.—

Houston [1st Dist.] 2012, pet. ref’d); Hobyl v. State, 152 S.W.3d 624, 627 (Tex.

App.—Houston [1st Dist.] 2004, pet. dism’d) (“An element of the offense of

evading arrest or detention is that the accused must know that the person from

whom he flees is a peace officer attempting to arrest or detain him.”) (emphasis in

original). Evidence that a police officer is asserting authority and attempting to

arrest or detain an individual includes use of emergency lights and sirens, pointing

to a driver to pull the vehicle over, and issuing verbal commands. Duvall v. State,

367 S.W.3d 509, 513 (Tex. App.—Texarkana 2012, pet. ref’d). “‘[F]leeing’ is

‘anything less than prompt compliance with an officer’s direction to stop,’ and

‘fleeing slowly is still fleeing.’” Lopez v. State, 415 S.W.3d 495, 497 (Tex.

App.—San Antonio 2013, no pet.) (quoting Horne v. State, 228 S.W.3d 442, 446

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

(Tex. App.—Texarkana 2007, no pet.)); see also Baines v. State, 418 S.W.3d 663,

670 (Tex. App.—Texarkana 2010, pet. ref’d) (“The relevant inquiry is whether

there was an attempt to flee or delay the detention.”). Courts may consider speed,



                                         7
distance, and duration of pursuit in determining whether a defendant intentionally

fled, but “no particular speed, distance, or duration is required to show the requisite

intent if other evidence establishes such intent.” Griego v. State, 345 S.W.3d 742,

751 (Tex. App.—Amarillo 2011, no pet.); Mayfield, 219 S.W.3d at 541 (“The

statute does not require high-speed fleeing, or even effectual fleeing. It requires

only an attempt to get away from a known officer of the law.”).

      Here, Deputy Laird testified that he stood in front of the emergency entrance

to the hospital in full uniform, with his gun drawn, and yelled commands for

appellant to stop his vehicle. Appellant, however, drove past him and accelerated

away from him. The DVD recording from Deputy Luce’s vehicle depicts a low-

speed chase lasting over two minutes throughout the hospital parking lot. Deputy

Luce drove behind appellant for the entire chase, and his emergency lights—on

during the entire chase—were visibly reflected in appellant’s rear license plate.

Deputy Luce turned on his siren approximately one minute into the chase, and

appellant continued driving for another minute before finally coming to a stop after

another deputy blocked the exit to the parking lot. During the chase, appellant

drove over speed bumps, ignored stop signs, and drove through a red light to U-

turn back into the parking lot. The parking lot was not busy at the time of the

chase, and appellant passed numerous empty parking spaces into which he could

have turned and parked.



                                          8
      In arguing that the State failed to present sufficient evidence that he

intentionally fled from the officers, appellant points out that “the speed [of the

chase] was low, the distance was short, and the duration was less than two-and-a-

half minutes” and that appellant voluntarily stopped his vehicle once he saw the

third deputy block the exit to the parking lot, arguing that it was at that point in

time that he first became aware that the officers were attempting to detain him.

Although speed, distance, and duration are factors to consider, no particular speed,

distance, or duration is required to establish intent to flee. See Griego, 345 S.W.3d

at 751; Mayfield, 219 S.W.3d at 541 (stating that section 38.04 “does not require

high-speed fleeing, or even effectual fleeing”; instead, it only requires “an attempt

to get away from a known officer of the law”).

      Although the chase here occurred at relatively low speeds throughout a

hospital parking lot and lasted for approximately two minutes, Deputy Luce

followed appellant in his patrol car with his emergency lights flashing—and with

his siren on for at least a minute—throughout the parking lot; and Deputy Laird, in

full uniform and with his weapon drawn, yelled at appellant to stop his vehicle.

Appellant disregarded these commands and proceeded to drive through the parking

lot, past stop signs, and through a red light without stopping for over two minutes,

even though the parking lot was not crowded and there were numerous empty

parking spaces into which appellant could have pulled. Appellant did not stop



                                         9
until a third officer blocked the exit to the parking lot with his patrol car. 2 See

Lopez, 415 S.W.3d at 497 (“‘[F]leeing’ is ‘anything less than prompt compliance

with an officer’s direction to stop,’ and ‘fleeing slowly is still fleeing.’”). The

chase occurred in the afternoon, during daylight hours, and with good visibility

conditions.

      Viewing the evidence in the light most favorable to the verdict, as we must,

we conclude that a reasonable jury could have found that appellant knew the

officers were attempting to detain him and that he intentionally fled from the

officers.     We hold that the State presented sufficient evidence to support

appellant’s conviction for evading arrest.

      We overrule appellant’s sole issue.




2
      As further evidence that he did not intend to flee, appellant points to the fact that
      he “shows his hands, by sticking them out of the vehicle, immediately before
      turning and coming to a stop in the hospital parking lot, which shows that he was
      now aware that the police were attempting to detain him.” Appellant’s complicity
      with the officers’ commands once he finally stopped does not, however, negate his
      conduct during the preceding two-minute chase, in which he ignored the officers’
      attempts to stop his vehicle.

                                           10
                                   Conclusion

      We affirm the judgment of the trial court.




                                                Evelyn V. Keyes
                                                Justice

Panel consists of Justices Keyes, Bland, and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).




                                           11
