DAVID TYLER KLAPUCH v. THE STATE OF TEXAS--Appeal from 36th District Court of San Patricio County

NUMBER 13-05-025-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

___________________________________________________________________

 DAVID TYLER KLAPUCH, Appellant,

v.

 THE STATE OF TEXAS, Appellee.

___________________________________________________________________

On appeal from the 36th District Court

of San Patricio County, Texas.

___________________________________________________ _______________

MEMORANDUM OPINION

Before Justices Hinojosa, Ya ez, and Rodriguez

Memorandum Opinion by Justice Rodriguez

Appellant, David Tyler Klapuch, was charged with evading arrest or detention. See Tex. Pen. Code Ann. ' 38.04 (Vernon 2003). A jury found appellant guilty, and the trial court assessed punishment at confinement for eighteen months in the Texas Department of Criminal Justice-State Jail Division and a fine of $500.[1] The trial court granted appellant=s application for community supervision and placed appellant on probation for four years. The trial court has certified that this case Ais not a plea bargain case, and the defendant has the right of appeal.@ See Tex. R. App. P. 25.2(a)(2). Through his sole issue, appellant contends the trial court erred in failing to submit to the jury the lesser included offense of fleeing or attempting to elude a police officer. See Tex. Transp. Code Ann. ' 545.421(a) (Vernon 1999). We affirm.

I. Background

All issues of law presented by this case are well settled, and the parties are familiar with the facts. Therefore, we will not recite the law or the facts except as necessary to advise the parties of the Court=s decision and the basic reasons for it. See Tex. R. App. P. 47.4.

II. Lesser Included Offense

Appellant contends the trial court erred in refusing his request for submission of a jury instruction on a lesser included offense. Appellant asserts that fleeing or attempting to elude a police officer is a lesser included offense of evading arrest or detention and that a rational jury could have found him guilty of the lesser included offense.

A. Standard of Review

On appeal, when evaluating whether a charge on a lesser included offense is warranted, we apply a two-prong test. Threadgill v. State, 146 S.W.3d 654, 665 (Tex. Crim. App. 2004) (en banc) (citing Feldman v. State, 71 S.W.3d 738, 750 (Tex. Crim. App. 2002)). We first determine whether the offense is actually a lesser included offense of the offense charged. Id.; see Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981) (providing 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); see also Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998) (explaining that the lesser included offense must be included within the proof necessary to establish the offense charged). Next, we review the entire record to determine whether it contains some evidence that would permit a rational jury to find that the defendant is guilty only of the lesser included offense. Threadgill, 146 S.W.3d at 665 (citing Feldman, 71 S.W.3d at 750). We may not consider whether the evidence is credible, controverted, or in conflict with other evidence. Moore, 969 S.W.2d at 8. Any evidence that the defendant is guilty only of the lesser included offense is sufficient to entitle the defendant to a jury charge on the lesser included offense. Id. (citing Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994)).

B. Analysis

1. First Prong

The State does not dispute that fleeing or attempting to elude a police officer is a lesser included offense of evading arrest or detention. See Tex. Pen. Code Ann. ' 38.04(a) (Vernon 2003) (providing that a person commits the offense of evading arrest or detention Aif he intentionally flees from a person he knows is a peace officer attempting to lawfully arrest or detain him@); Tex. Transp. Code Ann. ' 545.421(a) (Vernon 1999) (stating that a person commits the offense of fleeing or attempting to elude a police officer Aif the person operates a motor vehicle and wilfully fails or refuses to bring the vehicle to a stop or flees, or attempts to elude, a pursuing police vehicle when given a visual or audible signal to bring the vehicle to a stop@). The only difference between the two statutes, relevant to the facts of the present case, is the requirement in the greater offense that appellant have knowledge that the officer was attempting to lawfully arrest or detain him. See Walker v. State, 95 S.W.3d 516, 519 (Tex. App.BFort Worth 2002, pet. ref=d). Because the elements of fleeing or attempting to elude a police officer are included within the proof necessary to establish the offense of evading arrest or detention, the first prong of the two-part test is satisfied, making fleeing or attempting to elude a police officer a lesser included offense of evading arrest or detention. See Moore, 969 S.W.2d at 8; see also Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981).

2. Second Prong

Therefore, we need only determine whether there is some evidence in the record that would allow a rational jury to find appellant guilty only of the lesser included offense. Threadgill, 146 S.W.3d at 665 (citing Feldman, 71 S.W.3d at 750). In order for appellant to be entitled to an instruction on the lesser included offense of fleeing, there must be some evidence that he did not know that the officer was attempting to lawfully arrest or detain him. See id.; Walker, 95 S.W.3d at 519.

The record establishes that: (1) appellant drove a vehicle in excess of eighty miles per hour in a fifty-five mile per hour construction zone, which initiated Officer Jonathan Quade=s pursuit of appellant on Highway 181; (2) Officer Quade of the Portland Police Department pursued appellant with his police car=s overhead lights and siren activated, both on and off Highway 181; (3) during the pursuit appellant drove through at least two red lights and a four-way stop; (4) during the pursuit appellant also swerved his vehicle in the direction of another police car with its emergency lights activated; and (5) appellant continued to evade Officer Quade until he finally decided to stop his vehicle in Gregory, Texas.

Based on our review of the entire record, we conclude that a rational jury could find that appellant intentionally fled knowing that the officer was attempting to lawfully arrest or detain him. See id.; see also Tex. Pen. Code Ann. ' 38.04(a) (Vernon 2003). We also conclude that, based on the facts specific to the instant case, there was no evidence to allow a rational jury to find appellant guilty only of the lesser included offense of fleeing or attempting to elude a police officer. See Threadgill, 146 S.W.3d at 665 (citing Feldman, 71 S.W.3d at 750); see also Tex. Pen. Code Ann. ' 38.04(a) (Vernon 2003); Tex. Transp. Code Ann. ' 545.421(a) (Vernon 1999). Therefore, the trial court did not err in refusing to include an instruction on the lesser included offense. We overrule appellant=s sole issue.

III. Conclusion

Accordingly, we affirm the judgment of the trial court.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this 3rd day of November, 2005.

[1]Evading arrest or detention is a Class B misdemeanor. Tex. Pen. Code Ann. '38.04(b) (Vernon 2003). However, the level of the offense rises to a state jail felony if, as in the present case, the actor uses a vehicle while in flight and the actor has not been previously convicted under this section of the Texas Penal Code. Id. '38.04(b)(1).