                            NUMBER 13-11-00619-CR

                              COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


GUADALUPE TOVAR CHAVEZ JR.,                                               Appellant,

                                          v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 206th District Court
                         of Hidalgo County, Texas.


                            MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Rodriguez and Garza
              Memorandum Opinion by Chief Justice Valdez

      Appellant, Guadalupe Tovar Chavez Jr., raises three issues in his appeal from a

conviction for the state jail felony offense of evading arrest. See TEX. PENAL CODE ANN.

§ 38.04(a), (b)(1)(B) (West Supp. 2011). We affirm.
                                       I. BACKGROUND

       The evidence and testimony offered at appellant’s jury trial established that, on

September 23, 2010, Officer Guadalupe Garcia of the City of Pharr Police Department

was in his police vehicle when he observed appellant operating a motor vehicle with an

expired vehicle registration and an expired state inspection sticker.          Subsequently,

Officer Garcia activated his police siren and began following closely behind appellant’s

vehicle in an attempt to effectuate a traffic stop. Appellant did not stop for the officer.

Instead, appellant activated his hazard lights, rolled down his window, and reached his

hand outside the car to gesture to the officer to follow him. Appellant did not stop his

vehicle until he reached his residence, approximately three blocks away, where he was

arrested by Officer Garcia for evading arrest.

       A jury found appellant guilty of evading arrest. The trial court placed appellant on

probation for two years. This appeal ensued.

                              II. SUFFICIENCY OF THE EVIDENCE

       In appellant’s second issue, which we address first, appellant argues that the

evidence was insufficient to support his conviction.

       A.     Standard of Review

       Under the Jackson standard, “the relevant question is whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 899-99 (Tex.

Crim. App. 2010) (plurality op.) (characterizing the Jackson standard as: “Considering

all of the evidence in the light most favorable to the verdict, was a jury rationally justified



                                              2
in finding guilt beyond a reasonable doubt”). The fact-finder is the exclusive judge of

the credibility of witnesses and of the weight to be given to their testimony. Anderson v.

State, 322 S.W.3d 401, 405 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd) (citing

Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008)).              Reconciliation of

conflicts in the evidence is within the fact-finder’s exclusive province. Id. (citing Wyatt v.

State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000)). We must resolve any inconsistencies

in the testimony in favor of the verdict. Id. (citing Curry v. State, 30 S.W.3d 394, 406

(Tex. Crim. App. 2000)).

       In reviewing the sufficiency of the evidence, we look at events occurring before,

during, and after the commission of the offense, and we may rely on actions of the

appellant that show an understanding and common design to do the prohibited act. See

Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). Each fact need not point

directly and independently to the appellant’s guilt, so long as the cumulative effect of all

the incriminating facts is sufficient to support the conviction. Id.

       We measure the legal sufficiency of the evidence by the elements of the offense

as defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303,

307 (Tex. App.—Corpus Christi 2004, pet. ref'd) (citing Malik v. State, 953 S.W.2d 234,

240 (Tex. Crim. App. 1997)). “Such a charge [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.” Villarreal v. State, 286 S.W.3d

321, 327 (Tex. Crim. App. 2009) (quoting Malik, 953 S.W.2d at 240).




                                              3
       B.     Discussion

       Under a hypothetically correct jury charge, the State was required to prove

beyond a reasonable doubt that appellant intentionally used a vehicle to flee from a

person he knew was a peace officer attempting lawfully to arrest or detain him. See

TEX. PENAL CODE ANN. § 38.04(a), (b)(1)(B).

       Appellant argues that the State failed to meet this burden because the

undisputed evidence proved that, after Officer Garcia activated his police siren and

attempted to effectuate the traffic stop, appellant:         (1) drove slowly; (2) did not

accelerate; (3) did not drive in a reckless manner; (4) acknowledged the officer by

activating his hazard lights; (5) gestured to the officer to follow him; (6) continued driving

for only three blocks; (7) made no effort to elude the officer; (8) eventually stopped at

his home, which he considered to be the first safe place to stop because “he needed a

witness present at the stop to avoid any issues with the police”; and (9) complied with

the officer’s orders after exiting the vehicle at his residence.

       At trial, the evidence established that Officer Garcia was attempting to lawfully

detain appellant at the time this incident occurred. The evidence also established that

appellant was aware that Officer Garcia was a peace officer who was attempting to

effectuate a traffic stop. The evidence established that appellant did not stop for Officer

Garcia, but instead intentionally kept driving after he knew Officer Garcia was

attempting to effectuate a traffic stop. Therefore, the question presented is whether the

evidence is sufficient to establish that appellant intentionally fled from the officer.

       The Amarillo Court of Appeals has noted that “while speed, distance, and

duration of pursuit may be factors in considering whether a defendant intentionally fled,



                                               4
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.). In Griego, the Amarillo Court of Appeals cited an unpublished

opinion by this Court involving factual circumstances that closely parallel those

presented in this case. See id. (citing Robinson v. State, Nos. 13-10-00064-CR, 13-10-

00065-CR, 2011 Tex. App. LEXIS 1844, at *14-15 (Tex. App.—Corpus Christi Mar. 10,

2011, no pet.) (mem. op., not designated for publication) (concluding that, even though

appellant only drove approximately three blocks at a slow speed, her own testimony

established that she had seen police lights but had refused to stop because she was

“afraid”)).

          In Robinson, we quoted a decision by the Texarkana Court of Appeals, which

explained that “‘fleeing’ is anything less than prompt compliance with an officer’s

direction to stop.” Robinson, 2011 Tex. App. LEXIS 1844, at *14-15 (citing Horne v.

State, 228 S.W.3d 442, 446 (Tex. App.—Texarkana 2007, no pet.)). In upholding the

sufficiency of the evidence in Robinson, we borrowed language from a second opinion

by the Texarkana Court of Appeals, which explained that “fleeing slowly is still fleeing.”

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

pet.)).

          Based on the foregoing, we conclude that the evidence was sufficient to prove

that appellant intentionally fled when he intentionally kept driving and did not stop for

Officer Garcia after he knew Officer Garcia was attempting to effectuate a lawful traffic

stop. Accordingly, appellant’s second issue is overruled.




                                             5
                                   III. JURY-CHARGE ERROR

       In his first issue, appellant complains of error in the jury charge. Specifically,

appellant argues that it was error for the trial court to fail to include in the jury charge an

instruction on the defense of necessity. See TEX. PENAL CODE ANN. § 9.22 (West 2011).

Appellant did not request the instruction.        Appellant told the trial court he had “no

objection” to the jury charge.

       A claim of jury-charge error is typically reviewed using the procedure set out in

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). However, the Texas

Court of Criminal Appeals has explained that “Almanza does not apply unless the

appellate court first finds ‘error’ in the jury charge.” Posey v. State, 966 S.W.2d 57, 61

(Tex. Crim. App. 1998).          In Posey, the Texas Court of Criminal Appeals further

explained:

       The “plain” language of Article 36.14 makes clear that a defendant must
       object to the charge before he may be heard to complain on appeal about
       "errors claimed to have been committed in the charge, as well as errors
       claimed to have been committed by omissions therefrom or in failing to
       charge upon issues arising from the facts.

Id.

       Therefore, “there generally is no ‘error’ in the charge unless the defendant

objects in writing to claimed ‘errors’ of commission and omission in the charge.” Id.

Otherwise, Article 36.14 would be rendered “meaningless by permitting a defendant to

complain for the first time on appeal about the omission of a defensive issue in the

court’s charge.” Id. at 61 n.9.

       Based on the foregoing, we conclude that there is no error in the trial court’s

failure to instruct the jury on the defense of necessity because appellant failed to object



                                              6
to the charge and because he affirmatively stated that he had “no objection” to the

charge.

       Appellant’s first issue is overruled.

                                IV. MOTION FOR NEW TRIAL

       In his third issue, appellant complains that the trial court erred in denying his

motion for new trial.

       A.     Applicable Law

       A trial judge does not have authority to grant a new trial unless the first

proceeding was not in accordance with the law. State v. Herndon, 215 S.W.3d 901, 907

(Tex. Crim. App. 2007). The legal grounds for which a trial judge must grant a new trial

are listed in Rule 21.3 of the Texas Rules of Appellate Procedure, but that list is

illustrative, not exclusive. Id. (citing TEX. R. APP. P. 21.3). A trial judge may grant a

motion for new trial on other legal grounds as well. Id. Even errors that would not

inevitably require reversal on appeal may form the basis for the granting of a new trial if

the trial judge concludes that the proceeding has resulted in “a miscarriage of justice.”

Id. Nonetheless, a trial judge must have a legally valid reason for granting a new trial;

he cannot grant a new trial on mere sympathy, an inarticulate hunch, or simply because

he personally believes that the defendant is innocent or “received a raw deal.” Id.

       B.     Standard of Review

       We review the trial court’s ruling on a motion for new trial for abuse of discretion.

Id. The test for abuse of discretion:

       is not whether, in the opinion of the reviewing court, the facts present an
       appropriate case for the trial court’s action; rather, it is a question of
       whether the trial court acted without reference to any guiding rules or
       principles, and the mere fact that a trial court may decide a matter within

                                               7
       its discretionary authority differently than an appellate court does not
       demonstrate such an abuse.

Id. at 907-08.

       C.        Discussion

       In his motion for new trial, appellant asserted that “[t]he verdict in this cause is

contrary to the law and the evidence.” In support of this contention, appellant asserted

that he:

       was prevented from the introduction of competent, relevant evidence
       regarding [his] state of mind at the time of the alleged police pursuit that
       resulted in his arrest, the circumstances in which the arrest was made,
       and related evidence regarding [his] prior interactions with the City of
       Pharr Police Department, and other elected officials by virtue of his prior
       political candidacy in said city.

Based on the foregoing, and in the interests of justice, appellant requested that the trial

court grant a new trial.

       Although appellant argues that, in his motion for new trial, he also “raised the

non-inclusion of the justification instruction regarding necessity,” our review of

appellant’s motion for new trial indicates that the grounds raised by appellant were

limited to the foregoing grounds and did not include any alleged jury charge error.

Accordingly, we will not revisit the issue of jury charge error in deciding appellant’s

challenge to the denial of his motion for new trial.

       Appellant has also generally asserted that the trial court should have granted his

motion for new trial because the evidence was insufficient. As noted above, appellant

argued in his motion for new trial that he “was prevented from the introduction of

competent, relevant evidence,” which suggests that appellant offered evidence that the

trial court improperly excluded. However, appellant has not briefed any evidentiary



                                              8
error in this appeal. There being no further explanation for how the “[t]he verdict in this

cause is contrary to the law and the evidence,” we conclude that appellant has failed to

demonstrate that the trial court abused its discretion in denying his motion new trial.

       Appellant’s third issue is overruled.

                                      V. CONCLUSION

       The judgment of the trial court is affirmed.

                                                        __________________
                                                        ROGELIO VALDEZ
                                                        Chief Justice

Do not Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
9th day of August, 2012.




                                               9
