Israel Cervantes v. The State of Texas--Appeal from 203rd District Court of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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ISRAEL CERVANTES, ) No. 08-05-00253-CR

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Appellant, ) Appeal from

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v. ) 203rd District Court

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THE STATE OF TEXAS, ) of Dallas County, Texas

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Appellee. ) (TC# F-0453253-MP)

O P I N I O N

Israel Cervantes appeals his conviction of evading arrest or detention by using a vehicle. A jury found him guilty and sentenced him to eighteen years in prison and assessed a $10,000 fine. We affirm.

FACTUAL SUMMARY

On June 22, 2004, Officer Colon-Melendez and his partner, Officer Whitworth, spotted a vehicle that had been reported stolen in an aggravated robbery. The officers had received information on their mobile computer with the description and license plate number of the car. The broadcast described the vehicle in detail as a dark blue 90 s model Ford Crown Victoria with large twenty inch mag type, shiny wheels or rims. After the officers verified that they had spotted the stolen car, they called for cover officers to assist them. Officer Whitworth testified it is policy to call for cover when performing a felony stop because it is high risk. The officers followed the suspect vehicle while they were waiting for the cover officers to arrive. At this time, lights and sirens were not yet activated. Soon after the cover officers arrived, the vehicle appeared to pull over at the corner of Church and White Rock Trail in a residential area. Officer Colon-Melendez turned on the lights of the patrol car and the suspects took off northbound on White Rock Trail. There were two people inside the car.

The speed limit through the residential area was between 25 and 35 miles per hour. The officers followed the vehicle down White Rock Trail at speeds of 60 to 70 miles per hour. The car then turned on Audelia and swerved through traffic at speeds of 70 to 85 miles per hour. The chase continued on Skillman at speeds upwards of 100 and 110 miles per hour. Officer Colon-Melendez testified that the stolen vehicle ran at least one red light at the intersection of Jupiter and McCree and narrowly missed colliding with a pick up truck traveling through the intersection. Officer Whitworth testified that the stolen vehicle ran the light and that the officers almost had to come to a complete stop to avoid a collision. The stolen vehicle continued southbound on Jupiter before colliding with another vehicle just south of Northwest Highway. The car spun completely around so it was facing the northbound direction in the northbound lanes. Officer Colon-Melendez and Officer Whitworth observed two people jump out of the vehicle, one from the driver side and the other from the passenger side. The driver ran west while the passenger ran east. Both officers identified Appellant as the person who jumped out of the driver side. He ran down an alley parallel to Northwest Highway and the officers gave chase in the patrol car. They pursued him for 25 to 50 yards through the alley before taking him into custody. The passenger, identified as Appellant s brother, was apprehended by Officer Blanco who was driving the third patrol car.

LEGAL SUFFICIENCY

Appellant contends in his sole point of error that the evidence was legally insufficient to prove the officers were lawfully attempting to arrest or detain him.

Standard of Review

In a legal sufficiency challenge, we review the evidence in the light most favorable to the verdict in determining whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Stewart v. State, 187 S.W.3d 249, 255 (Tex.App.--El Paso 2006, pet. filed). We must consider all evidence ruled admissible by the trial court, whether proper or improper, in determining whether the evidence was sufficient to support a conviction. Chambers v. State, 805 S.W.2d 459, 460 (Tex.Crim.App. 1991); Miles v. State, 918 S.W.2d 511, 512 (Tex.Crim.App. 1996). We do not resolve any conflict in fact, weigh any evidence or evaluate the credibility of any witnesses, and thus, the fact-finding results of a criminal jury trial are given great deference. Stewart, 187 S.W.3d at 255, citing Menchaca v. State, 901 S.W.2d 640, 650-52 (Tex.App.--El Paso 1995, pet. ref d). Any inconsistencies in the evidence will be resolved in favor of the verdict. Id. at 255-56. The trier of fact, not the reviewing court, has the liberty to accept or reject any and all testimony given by a witness. Id. at 256; Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992).

The Offense

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 2003). Even though the indictment alleged the offense in the conjunctive, the jury was correctly instructed in the disjunctive, and therefore the State only had to prove that the officers were attempting to arrest or detain Appellant. Rosales v. State, 4 S.W.3d 228, 231 (Tex.Crim.App. 1999), citing White v. State, 890 S.W.2d 69, 72 (Tex.Crim.App. 1994)( although indictment may allege manner and means of committing offense in the conjunctive, jury may be charged in the disjunctive and a conviction on any method alleged will be upheld if the evidence supports it ).

A brief investigatory detention may be lawful when based on reasonable articulable suspicion. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889 (1968). An officer is generally justified in briefly detaining an individual on less than probable cause for the purposes of investigating possibly criminal behavior where the officer can point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion. Padilla v. Mason, 169 S.W.3d 493, 503 (Tex.App.--El Paso 2005, pet. denied), citing Terry, 392 U.S. at 21, 88 S. Ct. 1880. Under the Fourth Amendment, there must be some minimal level of objective justification for making the stop. U.S. Const. amend. IV; Illinois v. Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000); United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989). The level of suspicion required for a Terry stop is less demanding than what is required for probable cause and is considerably less than a preponderance of the evidence. Wardlow, 528 U.S. at 123; Sokolow, 490 U.S. at 7, 109 S. Ct. At 1585. Whether reasonable suspicion exists must be determined by looking at the totality of the circumstances. Sokolow, 490 U.S. at 7-8, 109 S. Ct. At 1585.

The Evidence

Here, the officers had reasonable suspicion that a crime had been committed and were justified in relying on the collective information of their colleagues in their attempt to detain Appellant. The broadcast concerning the armed robbery and stolen car was sent to the officers computer and identified the license plate number and type of vehicle reported stolen. See Brown v. State, 986 S.W.2d 50, 52 (Tex.App.--Dallas 1999, no pet.)(holding an NCIC report of a stolen vehicle not only provides reasonable suspicion for a stop, but is sufficient to support probable cause to arrest an individual possessing it). When the officers saw a car matching the description less than two hours later, they had reasonable suspicion to detain the car for further investigation. Sawyer v. State, No. 08-04-00204-CR, 2005 WL 2591884, at *4-5 (Tex.App.--El Paso Oct. 13, 2005, no pet.)(not designated for publication)(officer was justified in relying on a dispatch where information describing the suspect, his clothes, and the car he was driving was provided to the dispatching officer by a named store clerk, and when the officer observed a vehicle matching that description leaving the parking lot of the store he had reasonable suspicion to further investigate); Kelly v. State, 721 S.W.2d 586, 587 (Tex.App.--Houston [1st Dist.]1986, no pet.)(officer who received information through his vehicle s computer terminal regarding a stolen vehicle had reasonable suspicion to stop and detain a defendant who was driving it). Because Appellant intentionally fled from the officers who were attempting to lawfully detain him, the evidence was legally sufficient such that a rational trier of fact could have found him guilty of the offense. And having concluded that the evidence was legally sufficient to establish a lawful detention, we need not address Appellant s arguments regarding a warrantless arrest. We overrule the sole issue for review and affirm the judgment of the trial court.

August 31, 2006

ANN CRAWFORD McCLURE, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)