Willie Charles Connor v. The State of Texas--Appeal from 77th District Court of Limestone County

IN THE

TENTH COURT OF APPEALS

No. 10-96-131-CR

WILLIE CHARLES CONNOR,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 77th District Court

Limestone County, Texas

Trial Court # 8540-A

O P I N I O N

A jury convicted Willie Charles Connor of the offense of felony escape and assessed punishment at two years in prison. Tex. Penal Code Ann. 38.06 (Vernon 1994). Connor appeals on four points. He argues that the court erred in denying his motion for instructed verdict, in admitting evidence of "other wrongs" in violation of Rule 404, and in refusing his requested instruction on the lesser-included offense of evading arrest. He also asserts a Batson error. // The State has not provided us with a brief.

Because we find that the court erred in refusing Connor's requested instruction on evading arrest, we will reverse the judgment.

THE EVIDENCE

The only witness at trial was Hugh Curry, a Limestone County deputy sheriff. Curry testified that he arrived at Connor's house on the morning of August 29, 1995, to serve a felony probation-revocation warrant. Connor answered the door, and Curry informed him that he was under arrest. Connor had apparently been in the bathroom and was in a state of undress with his pants around his knees. Curry allowed Connor to finish using the restroom and to put on a shirt. He also allowed Connor to go outside the house to turn off the water. Connor then borrowed a pen from Curry and wrote a note to a relative. Curry began frisking Connor, but when he reached his leg, Connor fled the house. Curry briefly gave chase on foot. Connor was located and arrested later that day. Curry testified that, at the time he was frisking Connor, Connor was not free to leave and that he considered Connor to be under arrest.

On cross-examination, Connor questioned Curry on the definition of "when a person is arrested" under article 15.22 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 15.22 (Vernon 1977).

Q: I call your attention to Article 15.22. I believe it's styled "When a person is arrested." Can you read that out loud, please, sir.

A: "Article 15.22. When a person is arrested. A person is arrested when he has been actually placed under restraint or taken into custody by an officer or person executing a warrant [of] arrest, or by an officer or person arresting without a warrant."

Q: Okay. Officer Curry, we've already established that you did not place any physical restraints on Willie. Is that correct?

A: That's correct.

Q: And, likewise, you didn't take him into custody either, did you, sir?

A: That's what I was attempting to do.

Q: You were attempting to do it. But that's my point. And believe me, I understand you've got a hard job, and most of us wouldn't want to do it. But point of fact, you were attempting to take him into custody. You never got it done.

A: That's true. That's true.

DIRECTED VERDICT

Connor's second point asserts that the court erred in denying his motion for an instructed verdict because the evidence conclusively established that he was not "in custody" or "under restraint" at the time of the alleged escape. A challenge to the judge's ruling on a motion for instructed verdict is in actuality a challenge to the legal sufficiency of the evidence to support the conviction. See Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993). In reviewing the legal sufficiency of the evidence, we consider all of the evidence State's and defense's in the light most favorable to the verdict. See Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1990). If the evidence is sufficient to sustain the conviction, then the trial judge did not err in overruling the motion. Id. //

The Penal Code defines "custody" as being "under arrest by a peace officer or under restraint by a public servant pursuant to an order of a court." Tex. Penal Code Ann. 9.01(1), 38.01(1) (Vernon 1994). "Escape" is an "unauthorized departure from custody." Id. 38.01(2) (Vernon Supp. 1997). Article 15.22 of the Code of Criminal Procedure, "When a person is arrested," provides:

A person is arrested when he has been actually placed under restraint or taken into custody by an officer or person executing a warrant of arrest, or by an officer or person arresting without a warrant.

Tex. Code Crim. Proc. Ann. art. 15.22. The court's charge gave each of these definitions.

Connor argues that there was no completed arrest and thus no evidence of "custody" or "restraint" to uphold an escape conviction. Connor concedes that the Court of Criminal Appeals had held adversely to his position. Morris v. State, 739 S.W.2d 63, 65-66 (Tex. Crim. App. 1987). In Morris, the defendant was meeting with his parole officer. A police officer recognized Morris as a suspect in another matter and informed him that he was under arrest for unauthorized use of a motor vehicle. Id. at 65. The officer read Morris his rights, asked some questions, called for a unit to transport Morris to jail, but did not handcuff him. Morris "jumped up and ran out of the office . . . and out the front door." Id. Relying on United States v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980), the Court of Criminal Appeals concluded that the circumstances revealed "a show of official authority such that a reasonable person would have believed that he was not free to leave." Morris, 739 S.W.2d at 66. Thus, the facts supported the lower court's conclusion that Morris had committed the offense of escape. Id.

Connor argues, however, that the Mendenhall standard has been changed by California v. Hodari D., 499 U.S. 621, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991). Hodari D., adopted by the Court of Criminal Appeals in Johnson v. State, 912 S.W.2d 227 (Tex. Crim. App. 1995), holds that a person is "seized" only when a reasonable person would not believe he was free to leave and 1) is subjected to a show of authority and yields or 2) physical force is used to limit movement. Hodari D., 499 U.S. at 627, 111 S. Ct. at 1552.

Looking at the evidence in the light most favorable to the State, we find that: Curry informed Connor that he was under arrest; Curry testified that Connor was not free to leave; and Connor yielded to Curry's authority, allowing Curry to frisk him. Under either Mendenhall or Hodari D., the evidence is legally sufficient to find that Connor was "in custody" or "under restraint." Id.; Mendenhall, 446 U.S. at 554, 100 S. Ct. at 1877. Thus, the court did not err in refusing to instruct a verdict of acquittal. Madden, 799 S.W.2d at 686. We overrule point two.

LESSER-INCLUDED OFFENSE

In his fourth point, Connor argues that the court erred in refusing his requested instruction on evading arrest because, under the evidence presented, it was a lesser-included offense of the escape charge.

During voir dire, defense counsel argued that the State had "overcharged" Connor. Counsel read the definition of evading arrest to the venire panel without objection. At the conclusion of the evidence, Connor requested an instruction on evading arrest, which the court refused. In closing arguments, defense counsel again asserted that Connor had been incorrectly charged. Counsel argued that the State had charged Connor with felony escape because it carried a prison term rather that charging him with misdemeanor evading arrest which carried only a six-month jail term. During its deliberations, the jury sent a note asking, "What is the definition of evading arrest as opposed to escape?" The court instructed the jury that the definition could not be provided. The jury convicted Connor of felony escape and assessed punishment at the minimum of two years in prison.

In determining whether a jury must be instructed concerning a lesser-included offense, a two-step analysis must be applied. Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App.), cert. denied, 510 U.S. 918, 114 S. Ct. 313, 126 L. Ed. 2d 260 (1993). First, we must determine whether the offense constitutes a lesser-included offense. Id. at 672. Article 37.09 provides, in part, that an offense is a lesser-included offense if "it is established by proof of the same or less than all the facts required to establish the commission of the offense charged." Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981). Second, there must be some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense. Rousseau, 855 S.W.2d at 672-73.

Whether an offense is a lesser-included offense of the charged offense requires a case-by-case determination. Bartholomew v. State, 871 S.W.2d 210, 212, (Tex. Crim. App. 1994). Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge. Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994).

The "evading arrest" statute reads in part:

38.04 Evading Arrest or Detention

(a) A person commits an offense if he intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him.

Tex. Penal Code Ann. 38.04(a) (Vernon 1994). The "escape" statute reads in part:

38.06 Escape

(a) A person commits an offense if he escapes from custody when he is:

(1) under arrest for, charged with, or convicted of an offense; or

(2) in custody pursuant to a lawful order of a court.

Id. 38.06.

Evading arrest is a lesser-included offense if, under the facts of the case, it is established by proof of the same or less than all facts required to establish escape. Tex. Code Crim. Proc. Ann. art. 37.09(1). The Dallas Court determined that evading arrest was not a lesser-included offense of escape because the former applies when a suspect flees prior to arrest and the latter when a suspect flees after arrest. Coleman v. State, 825 S.W.2d 735, 736 (Tex. App. Dallas 1992, no pet.). Further, escape requires the State to prove a completed arrest while evading arrest requires proof of an attempt to arrest the defendant. Id.

In making a determination of whether Connor was entitled to an instruction on evading arrest, we look at all the evidence presented at trial. Bignall, 887 S.W.2d at 23. Officer Curry testified on cross-examination that he was attempting to take Connor into custody when Connor fled:

Q: And, likewise, you didn't take him into custody either, did you, sir?

A: That's what I was attempting to do.

Q: You were attempting to do it. . . . you were attempting to take him into custody. You never got it done.

A: That's true. That's true.

Looking at all the evidence, there is some evidence that Curry was attempting to take Connor into custody. Under these limited circumstances, the first prong of the Royster-Rousseau test is met because the elements for establishing escape and evading arrest are the same but for the completed arrest. See Bartholomew, 871 S.W.2d at 212. The second prong is likewise met because there is more than a scintilla of evidence from which a rational trier of fact could determine that if Connor were guilty, he was guilty only of evading arrest. Rousseau, 855 S.W.2d at 673. We sustain point two.

Having sustained Connor's point that the court erred in refusing to instruct the jury on the lesser offense of evading arrest, we do not reach his remaining points. We reverse the judgment and remand the cause to the trial court for a new trial.

BILL VANCE

Justice

Before Chief Justice Davis,

Justice Cummings, and

Justice Vance

Reversed and remanded

Opinion delivered and filed June 4, 1997

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