Terrance Wayne Powell v. The State of Texas--Appeal from 70th District Court of Ector County

Opinion filed April 19, 2007

In The

Eleventh Court of Appeals

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   No. 11-05-00204-CR

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   TERRANCE WAYNE POWELL, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 70th District Court

Ector County, Texas

Trial Court Cause No. A-31,663

O P I N I O N

The jury convicted Terrance Wayne Powell of evading arrest or detention. The jury found the enhancement paragraphs to be true and assessed punishment at eight years confinement. We affirm.

In his first issue on appeal, appellant argues that the trial court erred in denying his motion for an instructed verdict. In his second issue on appeal, appellant contends that the evidence is factually insufficient to support his conviction. A challenge to the trial court=s ruling on a motion for an instructed verdict is in actuality a challenge to the sufficiency of the evidence to support the conviction. Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1990). In order to determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and determine whether 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 (1979); Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11.

Odessa Police Officer Toby Julian was on patrol April 15, 2004, with Officer Jesse Garcia when they saw the driver of a Ford Explorer commit a traffic violation. Officer Julian initiated the overhead lights on his patrol car and followed the Explorer. Officer Julian recognized appellant as the driver of the Explorer. Appellant stopped the Explorer in the front yard of a known Acrack house.@ Officer Julian testified that he pulled in behind appellant. Officer Julian and Officer Garcia got out of the patrol car to make contact with appellant. When the officers got out of the patrol car, appellant drove off in the Explorer, jumping the curb and throwing dirt from the vehicle. Officers Julian and Garcia returned to the patrol car and followed appellant approximately seventy yards before appellant stopped the vehicle. Appellant was not traveling at a high rate of speed during the pursuit.

Appellant told the officers that the carpet on his vehicle Agot stuck@ preventing him from stopping the vehicle. Officer Julian testified that appellant=s story was not believable.

Appellant argues that the evidence is legally and factually insufficient to support his conviction because the pursuit occurred over a short distance and was at a low rate of speed. Tex. Pen. Code Ann. ' 38.04(a) (Vernon 2003) provides that a person commits the offense of evading arrest or detention if Ahe intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him.@ The offense is a Class B misdemeanor except that the offense is Aa state jail felony if the actor uses a vehicle while the actor is in flight.@ Tex. Pen. Code Ann. ' 38.04(b)(1) (Vernon 2003).

The record shows that Officer Julian activated the overhead lights on his patrol car and followed appellant. Appellant stopped the vehicle, and the officers got out of their patrol car. Appellant then left in his vehicle after the officers attempted to detain him. We find that the evidence is legally and factually sufficient to support appellant=s conviction for evading arrest or detention. Appellant=s first and second issues on appeal are overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

April 19, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.