Opinion issued October 24, 2019




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-18-00335-CR
                           ———————————
                       AVIS LAVAR KING, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 56th District Court
                         Galveston County, Texas
                     Trial Court Case No. 17-CR-1219


                         MEMORANDUM OPINION

      A jury convicted appellant, Avis Lavar King, of evading arrest with a motor

vehicle,1 found two enhancement paragraphs true, and assessed punishment at 32

years’ confinement and a $1,500 fine. In two issues on appeal, appellant contends


1
      See TEX. PENAL CODE § 38.04(b)(2)(A).
that (1) the trial court erred in refusing to charge the jury on the defense of mistake-

of-fact and (2) the evidence is legally insufficient. We affirm.

                                   BACKGROUND

      On May 1, 2017, Joseph Paul Rivera parked his new, red Mercedes outside a

doughnut shop in Galveston and went inside. When Rivera left the store, he

discovered that his car had been stolen. He called 911 and reported that, based on

what someone at the scene had told him, two white men had stolen the car. Rivera

believed that there was a second key fob in his glove compartment, which allowed

the car to be taken without the keys. He later learned that his car had been in an

accident and was a total loss.

      R. Hernandez, an investigator for Gulf Coast Bail Bonds, testified that he was

traveling on Broadway in Galveston when he saw a red Mercedes back into a pick-

up truck at an intersection. The driver of the truck got out to exchange information

with the driver of the Mercedes, but the Mercedes driver, a black male, later

identified as appellant, sped away. Hernandez flagged down a Galveston Police

officer, and, while the officer was turning around, Hernandez followed appellant for

a block and a half. The police officer soon caught up, and Hernandez moved aside

to let the officer take over the pursuit.

      Officer J. Rupert of the Galveston Police Department then began pursuit of

appellant. Traffic was heavy, so Rupert activated his lights and sirens. When he was


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four or five blocks behind the Mercedes, Rupert noticed that its driver began running

stop signs. After appellant had run four or five stop signs without slowing down,

Rupert drove one block over, hoping that the Mercedes would “double back.”

Appellant, as Rupert had hoped, doubled back and Rupert met him head-on. Rupert

positioned his patrol car, a Ford Explorer with “Galveston Police” on the side and

overhead lights and sirens activated, to block the middle of the street, leaving a small

space on either side. Appellant maneuvered the Mercedes around the patrol car and

continued at a high rate of speed for another block and a half, before running another

stop sign and colliding with a car.

      The Mercedes flipped on its side, struck a building and power lines, and

landed in a nearby yard.       Appellant, the only occupant of the vehicle, was

uncooperative with police and would not put his hands behind his back. It took three

officers to detain him. The red Mercedes was, in fact, Rivera’s car, which had been

stolen from the doughnut shop. Whether appellant stole it or received it from the

two white males mentioned in the 911 call, is not reflected in the record.

      Appellant testified at trial that he had been in the hospital at UTMB on the

morning of May 1st and that he was released sometime around noon. Because there

was no one to pick him up, appellant began walking. He called his girlfriend from

a nearby service station and told her that he was trying to get a ride back to Houston.

Appellant testified that he encountered two white men in a red Mercedes at a


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convenience store and asked them for a ride to Houston. He claimed that the two

men then gave him the car, which he drove off in by himself. He claimed that he

intended to later return the car to the convenience store, though he did not know the

two men.

      While driving the Mercedes, appellant testified that he ran into the rear end of

a pickup truck. Because the driver of the truck got out and appeared very angry,

appellant said that he drove away and the angry man in the truck followed him. When

confronted with Officer Rupert’s dash-cam video from the ensuing chase, appellant

claimed that he never knew that an officer was chasing him, even though the officer’s

lights and sirens were activated. Appellant thought that the angry man in the pick-

up truck was still chasing him and that he was involved in a “road rage” incident.

      Appellant testified that it was not until Rupert’s marked unit tried to cut him

off that he noticed that police were involved. Appellant claimed that when he saw

the unit’s lights on, he knew that he needed to stop, but, due to his speed, he went

around the officer to avoid hitting him. As he did so, appellant collided with another

motorist.

                     SUFFICIENCY OF THE EVIDENCE

      In issue two, appellant contends that “the evidence is insufficient, as a matter

of law, to support appellant’s conviction for the offense of evading arrest in a motor

vehicle.” Specifically, appellant argues that “there is no possible way a jury could


                                          4
determine whether Appellant knew Rupert was pursuing him and trying to detain

him; attempting to lawfully arrest him; or that Appellant even knew that Rupert was

attempting to arrest or detain him.” Although raised as his second issue, we address

appellant’s sufficiency issue first because in it he seeks an acquittal. See Price v.

State, 502 S.W.3d 278, 281 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (“We

address appellant’s second issue first because it challenges the sufficiency of the

evidence and seeks rendition of a judgment of acquittal.”).

Standard of Review and Applicable Law

      We review the legal sufficiency of the evidence by considering all of the

evidence in the light most favorable to the jury’s verdict to determine whether any

rational trier of fact could have found the essential elements of the offense beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318–19 (1979); Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Our role is that of a due- process

safeguard, ensuring only the rationality of the trier-of-fact’s finding of the essential

elements of the offense beyond a reasonable doubt. See Moreno v. State, 755 S.W.2d

866, 867 (Tex. Crim. App. 1988). We give deference to the responsibility of the

factfinder to fairly resolve conflicts in testimony, weigh evidence, and draw

reasonable inferences from the facts. Williams, 235 S.W.3d at 750. The jury, as the

judge of the facts and credibility of the witnesses, may choose to believe or not to

believe the witnesses, or any portion of their testimony. Sharp v. State, 707 S.W.2d


                                           5
611, 614 (Tex. Crim. App. 1986); Jenkins v. State, 870 S.W.2d 626, 628 (Tex.

App.—Houston [1st Dist.] 1994, pet. ref’d).

      A person commits the offense of evading arrest with a motor vehicle if he (1)

intentionally flees, (2) from a person he knows to be a police officer attempting

lawfully to arrest or detain him, and (3) he uses a vehicle while in flight. See TEX.

PENAL CODE § 38.04; Hazkell v. State, 616 S.W.2d 204, 205 (Tex. Crim. App. 1981);

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 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).

      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


                                          6
2010, pet. ref’d) (“The relevant inquiry is whether there was an attempt to flee or

delay the detention.”). Courts may consider speed, 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.”).

Analysis

      Appellant claims the evidence is legally insufficient, arguing that “there is no

possible way a jury could determine whether Appellant knew Rupert was pursuing

him and trying to detain him; attempting to lawfully arrest him; or that Appellant

even knew that Rupert was attempting to arrest or detain him.” Thus, appellant

challenges only the second element of evading arrest with a motor vehicle, i.e.,

whether Rupert was a person appellant knew to be a police officer attempting

lawfully to arrest or detain him.

      Appellant relies on his own testimony that he believed he was being chased

by the angry man whose pick-up truck he claimed to have bumped, presumably

Hernandez. Even if Hernandez initiated the chase, there was other sufficient

evidence from which a rational jury could have concluded beyond a reasonable


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doubt that appellant did, in fact, know that Rupert was a police officer and was trying

to detain him. Rupert testified that, after taking over the chase, he activated his

overhead lights and sirens. Though appellant claimed not to have seen or heard

them, the jury, having viewed Rupert’s dash-cam video, was entitled to disbelieve

appellant’s testimony. See Sharp, 707 S.W.2d at 614 (holding that jury may

disbelieve any portion of witness’s testimony). Rupert was following appellant in a

unit marked “Galveston Police.” Rupert testified that there were two points at which

appellant should have seen or heard Rupert’s pursuit: First, when Rupert was

approximately one block from appellant with his lights and sirens activated, and

second, when Rupert pulled in front of appellant and appellant drove straight toward

him. Even appellant admitted that when he saw Rupert in the road in front of him,

“I observed that he wanted me to stop.” Even though appellant claimed that he could

not stop because of his speed, the jury could have disbelieved his testimony,

especially since appellant continued past the officer for another block and a half

before running a red light and crashing. See id.

      Thus, there was sufficient evidence for a rational jury to conclude beyond a

reasonable doubt that Officer Rupert was a person appellant knew to be a police

officer attempting lawfully to arrest or detain him. See Williams, 235 S.W.3d at 750.

      We overrule issue two.

                   JURY CHARGE ON MISTAKE OF FACT


                                          8
      In his first issue, appellant contends the trial court “erred in not allowing the

defense of mistake of fact to be included in the jury charge.” Specifically, appellant

argues that “evidence was adduced at trial that [appellant] did not know that Rupert,

a police officer, was indeed attempting to arrest or detain appellant.”

Standard of Review and Applicable Law

      It is a defense that the defendant “through mistake formed a reasonable belief

about a matter of fact if his mistaken belief negated the kind of culpability required

for commission of the offense.” TEX. PENAL CODE § 8.02(a). “Kind of culpability”

refers to the mental state required for criminal responsibility. Celis v. State, 416

S.W.3d 419, 430–31 (Tex. Crim. App. 2013). Thus, a mistake-of-fact defense turns

on the mistaken belief of the defendant, not others, and considers the conduct of

others only to the extent that it contributes to the defendant’s belief. Montgomery v.

State, 588 S.W.2d 950, 953 (Tex. Crim. App. [Panel Op.] 1979); Johnson v. State,

734 S.W.2d 199, 203–04 (Tex. App.—Houston [1st Dist.] 1987, pet. ref’d).

      If the evidence raises a mistake-of-fact defense and the defendant requests an

instruction, the trial court must instruct the jury on the defense. Jackson v. State, 646

S.W.2d 225, 226–27 (Tex. Crim. App. 1983); Williams v. State, 930 S.W.2d 898,

902 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d). The trial court must do so

regardless of the strength of the evidence. Anderson v. State, 11 S.W.3d 369, 372

(Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). The reasonableness of the


                                           9
defendant’s mistaken belief is a question for the jury. Granger v. State, 3 S.W.3d 36,

39–40 (Tex. Crim. App. 1999); Anderson, 11 S.W.3d at 372. But, if the evidence,

when viewed in a light most favorable to the defendant, does not establish a mistake-

of-fact defense, an instruction is not required. Id.

Analysis

      Appellant contends that he was entitled to a mistake-of-fact instruction

because he “asserted throughout his testimony he did not know a police officer was

pursuing him” and that “he thought a civilian, Hernandez, was angry and was

attempting to stop him and commit a road rage act as a result of [appellant] bumping

into his truck.”

      Even if we were to agree that there is a question of fact regarding whether

appellant was aware that police were trying to detain him when the chase started,

uncontroverted evidence shows that when Rupert pulled in front of him to block the

road, appellant was no longer mistaken about the fact that the police wanted to detain

him. Testimony on this issue was as follows:

      [Defense Counsel]: You’ve seen videos here and you’ve heard
      testimony. At some point an officer went in pursuit of you. You heard
      all of that testimony?

      [Appellant]: Yes, sir.

      [Defense Counsel]: When you were driving away after this bump, what
      was your intention at that time?

      [Appellant]: To get away from the gentleman that was chasing me.
                                          10
[Defense Counsel]: Did you have any idea that the police were after
you?

[Appellant]: No, sir. No, sir. Only time I had that idea was whenever
I seen the officer try to cut me off and to avoid hitting him I went
around. That’s the only thing I can think of.

****

[Defense Counsel]: You just mentioned to the jury that you actually did
see an officer head on?

[Appellant]: Yes, sir.

[Defense Counsel]: What was your thought in terms of seeing that
officer facing you?

[Appellant]: Well, I was trying to avoid hitting him. That’s why I went
around.

****

[Defense Counsel]: What kind of signals, if any, did you see from the
police car when it’s coming towards you?

[Appellant]: I really don’t recall. I know his lights were on. That’s
pretty much it.

[Defense Counsel]: And when you say “his lights were on”—

[Appellant]: The top, the top lights, yes, sir.

[Defense Counsel]: Did he have a spotlight on?

[Appellant]: I can’t recall.

[Defense Counsel]: Did you have a siren going?

[Appellant]: Yes, I believe the siren was going.
                                    11
      [Defense Counsel]: Did he have any kind of microphone or bullhorn?

      [Appellant]: No, sir.

      [Defense Counsel]: Did you—from what you observed, did you think
      he wanted you to stop?

      [Appellant]: Well, yeah, I observed that he wanted me to stop, but I was
      going so fast and as soon as he came and hit the corner I was like already
      there so I went around him.

      Even if appellant initially believed that the person chasing him through the

neighborhood was not a police officer, appellant certainly knew, and testified that

he knew, that when the officer pulled in front of him with lights and sirens on, the

police officer wanted him to stop. Whether appellant was able to stop does not go

to a mistake-of-fact defense, but was a credibility question for the jury to decide.

But, appellant, by his own testimony, was aware at this point in the chase that a

police officer was trying to detain him. See Witherspoon v. State, 671 S.W.2d 143,

144 (Tex. App.—Houston [1st Dist.] 1984, no pet.) (holding that, even though

appellant may have initially entered apartment by mistake, he was not entitled to

mistake-of-fact instruction when he left and re-entered apartment, raping victim

inside). As such, the trial court did not err in denying appellant a mistake-of-fact

charge.

      We overrule issue one.

                                  CONCLUSION


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      We affirm the trial court’s judgment.




                                                Sherry Radack
                                                Chief Justice

Panel consists of Chief Justice Radack and Justices Keyes and Landau.

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




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