                                     IN THE
                             TENTH COURT OF APPEALS

                                    No. 10-14-00058-CR

LEROY CALHOUN, JR.,
                                                               Appellant
v.

THE STATE OF TEXAS,
                                                               Appellee



                            From the 272nd District Court
                                 Brazos County, Texas
                           Trial Court No. 12-03318-CRF-272


                             MEMORANDUM OPINION


          Asserting one issue, Leroy Calhoun challenges the sufficiency of the evidence

supporting his conviction for second-degree felony evading arrest or detention with a

vehicle. Calhoun moved for a directed verdict based on the State’s alleged failure to

show the officer’s authority to detain Calhoun. The trial court denied the motion, the

jury found Calhoun guilty, and the trial court assessed a six-year sentence. We will

affirm.

          Specifically, Calhoun contends that the trial court erred in denying his motion for
directed verdict, which is a challenge to the sufficiency of the evidence to support the

conviction. See Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). The Court

of Criminal Appeals has expressed our standard of review of a sufficiency issue as

follows:

              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.
       Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
       13 (Tex. Crim. App. 2007). This “familiar standard gives full play to the
       responsibility of the trier of fact fairly to resolve conflicts in the testimony,
       to weigh the evidence, and to draw reasonable inferences from basic facts
       to ultimate facts.” Jackson, 443 U.S. at 319. “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, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).

       The offense of evading arrest requires the State to prove that the defendant

intentionally fled from a person he knew was a peace officer attempting to lawfully

arrest or detain him. TEX. PENAL CODE ANN. § 38.04(a) (West Supp. 2014). Calhoun’s

sufficiency argument is that the evidence was insufficient to show the officer’s authority

to detain Calhoun before Calhoun fled.

       Officer Tim Davis, who was a deputy with the Burleson County Sheriff’s

Department on May 17, 2012, testified that he was on patrol in a marked sheriff’s patrol

vehicle when dispatch advised to be on the lookout for a tan-colored Buick. Soon after

the dispatch, Davis spotted the vehicle, but he waited for backup to arrive before he

attempted to pull over the vehicle. When DPS Trooper John Anderson arrived, Davis

Calhoun v. State                                                                           Page 2
activated his overhead lights to attempt to stop the suspect vehicle, which then sped

away at a very high rate of speed. While attempting to get away, the suspect vehicle

ran a four-way stop intersection, went into a left turn lane, ran several more stop signs,

drove into oncoming traffic, and drove in a manner dangerous to surrounding vehicles.

       Davis said that the suspect vehicle then turned into an apartment complex and

continued to drive at a high rate of speed and in a dangerous manner. The suspect

vehicle left the apartment complex and continued to drive in a dangerous manner,

including driving in the wrong lane and at a high rate of speed. The suspect vehicle

wrecked while trying to turn, and Calhoun, the driver, fled on foot, but Anderson

caught him.

        Anderson testified that he was called to provide backup to Davis to help him

stop a suspect vehicle. He confirmed that the suspect vehicle refused to stop for law

enforcement and that Calhoun fled on foot after wrecking. Anderson chased him and

yelled for him to stop, but Calhoun continued to run until Anderson threatened to use

his Taser.

       Calhoun’s sufficiency complaint is that, other than Davis’s “be on the lookout”

testimony, the State did not adduce evidence of the basis for stopping Calhoun—that

Davis was attempting lawfully to arrest or detain him. Calhoun argues that the case

law presented to the trial court during argument on his motion for directed verdict—

case law that we and other courts have cited—was wrongly decided and misapplied the

authority that it relied on.




Calhoun v. State                                                                    Page 3
        The State first responds that, at trial on the morning of jury selection, Calhoun

filed a motion for continuance; his trial counsel alleged that he was unprepared to try

the case and that “it would set [him] up for ineffective assistance of counsel to proceed.”

After a break and discussion with the prosecutors, Calhoun’s trial counsel then stated

on the record:

               Based on the State’s promise to me that as to the initial reason why
        the officers are looking for a vehicle that my client allegedly was driving,
        which merely would be that they were dispatched there to look at the
        described vehicle and not the reason why; then, I can proceed because I do
        not have to get the information from the complaining witness in that other
        case that was dropped. So, I guess we’ll be fine to proceed.

The State thus notes that, in accordance with its agreement, no facts of the underlying

offense that justified the initial reason to stop and detain Calhoun were presented to the

jury.

        Secondly, the State supports the authority that it relied on in the trial court,

including our subsequent citation of it, and distinguishes Calhoun’s authority.           In

Pickens v. State, 159 S.W.3d 272 (Tex. App.—Amarillo 2005, no pet.), on a sufficiency

challenge to a conviction for evading detention, the Amarillo court stated:

        Moreover, authority holds that even if the initial attempt at detention is
        unlawful, the suspect may be stopped or arrested for criminal acts which
        he commits while attempting to avoid the officer. Blount v. State, 965
        S.W.2d 53, 54-55 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d). In other
        words, the fact that an officer may not have basis to stop a suspect does
        not insulate the suspect from arrest for other crimes committed while
        attempting to avoid the initial detention.

Pickens, 159 S.W.3d at 274. Calhoun argues that Pickens was wrongly decided and that

the Amarillo court’s reliance on Blount was misplaced because Blount was a suppression


Calhoun v. State                                                                       Page 4
case, not a challenge to the sufficiency of the evidence.       Calhoun argues that the

authority from the Houston First court that we should look to is instead Guillory v. State,

99 S.W.3d 735 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).             But the State

distinguishes Guillory, noting that it did not hold that the lawfulness of a defendant’s

detention must be determined at the time the officers directed him to stop. There, the

defendant argued that the evidence was insufficient to find that the officers had a legal

basis to stop him “because there is no way that the police officers could have known

whether or not he was actually violating a traffic law at the time they directed him to

pull over.” Id. at 740. Thus, the issue was not when the officers’ lawful basis for a stop

must occur, but whether the evidence was sufficient to show that the officers could see

from their vantage point that the defendant was driving without a front license plate.

Id. at 741. Also, there was no evidence, unlike this case, that the defendant committed

any other offenses during law enforcement’s pursuit. See id. at 740-41.

       The State furthermore notes that the State’s factual concession in Guillory was not

the holding in that case, but was just a one-sentence recitation of that concession and the

only discussion of the issue. In Guillory, the State conceded “that, unless the officers

had formed either probable cause to arrest appellant or had reasonable suspicion

sufficient to detain him at the time they directed appellant to stop, the subsequent arrest

for evading arrest was invalid.” Id. at 740.

       Finally, the State asserts that every appellate court that has addressed this issue

has held that the offenses committed while a defendant is attempting to evade an

officer’s detention provides a lawful basis to detain the defendant—even if the officer

Calhoun v. State                                                                     Page 5
did not have a lawful reason for the detention at the time the officer attempted to detain

the defendant initially. For example, in 2007, we stated:

               Moreover, “even if the initial attempt at detention is unlawful, the
       suspect may be stopped or arrested for criminal acts which he commits
       while attempting to avoid the officer.” Pickens v. State, 159 S.W.3d 272, 274
       (Tex. App.—Amarillo 2005, no pet.) (citing Blount v. State, 965 S.W.2d 53,
       54-55 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d)); see Bell v. State, 233
       S.W.3d 583, 587-88 (Tex. App.—Waco 2007, no pet. h.). According to
       Kelly, Ellis, and Lee, Williams drove through stop signs, blew through
       intersections, traveled at a high rate of speed, and ran over a street sign.
       Lee even observed Williams aiming the truck at pedestrians. Even if the
       officers possessed no lawful reason to detain Williams prior to the car
       chase, a lawful reason arose once Williams violated the traffic laws while
       attempting to evade the officers. See Pickens, 159 S.W.3d at 274; see also
       Bell, 233 S.W.3d at 587-88.

Williams v. State, No. 10-06-00341-CR, 2007 WL 4260479, at *4 (Tex. App.—Waco Dec. 5,

2007, pet. ref’d) (mem. op., not designated for publication); see Almond v. State, No. 08-

05-00369-CR, 2007 WL 2742320, at *3 (Tex. App.—El Paso Sept. 20, 2007, no pet.) (not

designated for publication); see also Bell v. State, 233 S.W.3d 583, 587-88 (Tex. App.—

Waco 2007, pet. ref’d, untimely filed).

       In conclusion, based on the above authority, we agree with the State that if a

defendant commits criminal activity during an attempt to evade law enforcement,

evidence of that criminal activity alone can be sufficient to support a finding that the

law enforcement officer’s detention was lawful. And in this case, the officer’s testimony

was that Calhoun committed numerous traffic offenses while attempting to evade

detention. Thus, the evidence is sufficient to support the lawfulness of the officers’

subsequent detention of Calhoun, and the trial court did not err in denying Calhoun’s

motion for directed verdict.

Calhoun v. State                                                                         Page 6
       We overrule Calhoun’s sole issue and affirm the trial court’s judgment.




                                                REX D. DAVIS
                                                Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed February 12, 2015
Do not publish
[CR25]




Calhoun v. State                                                                 Page 7
