PETER CASS VAIL, FROM A COUNTY COURT APPELLANT, v. OF THE STATE OF TEXAS, APPELLEE

 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-00793-CR
NO. 05-88-00794-CR
PETER CASS VAIL, FROM A COUNTY COURT
 
        APPELLANT,
 
v. OF
 
THE STATE OF TEXAS,
 
        APPELLEE. DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES STEWART, BAKER AND KINKEADE
OPINION BY JUSTICE STEWART
JULY 10, 1989
        Peter Cass Vail appeals from convictions for evading arrest and driving while intoxicated. The trial court assessed punishment for the evading arrest conviction at thirty days in jail, suspended and probated for six months, and set punishment for his DWI conviction at ninety days in jail, suspended and probated for two years. On appeal, appellant raises four points of error, alleging that 1) the evidence was insufficient to prove beyond a reasonable doubt appellant's guilt of evading arrest; 2) the information charging appellant with evading arrest was fundamentally defective because it failed to allege all elements of the offense; 3) and 4) the prosecutor committed reversible error in his cross-examination of the appellant when he injected his personal opinion as to appellant's intoxication. We disagree and affirm.
        At about 11:30 p.m. on October 9, 1987, two Dallas patrolmen, Officers Lundberg and Schriver, were travelling east on Walnut Hill Lane when they observed appellant's vehicle run a stop sign at the intersection of Walnut Hill and Bowman Street. The officers were in a marked car about half a block away when appellant ran the stop sign. They made a u-turn, put on their lights and siren and pursued the vehicle. Lundberg testified that, as they turned on their lights and siren, appellant appeared to speed up a great deal.
        Appellant turned right from Walnut Hill onto Cromwell Street, going about forty-five to fifty miles per hour. The speed limit on Walnut Hill is thirty-five miles per hour, and is thirty miles per hour on Cromwell, Timberview and Flaxley. Appellant ran another stop sign at the intersection of Cromwell and Timberview and then turned right on Flaxley. The appellant turned onto Timberview and the officers lost sight of the vehicle. When the officers turned onto Timberview, they did not see the vehicle and almost passed it because it was parked on the street. The officers parked behind appellant's car, and drew their guns because they felt that appellant might have been involved in a burglary. They removed appellant from his car, handcuffed him, placed him on the ground and searched him. Lundberg testified that, based upon his observations of appellant's eyes, gait and speech, appellant was intoxicated. Appellant was arrested for evading arrest and DWI, and he declined to take a breath or blood test.
        Lundberg testified that the entire time appellant was being pursued, appellant's vehicle was proceeding at forty-five to fifty miles per hour. Most of the chase took place after appellant turned off of Walnut Hill. The area of Cromwell, Timberview and Flaxley is a residential area with narrow streets, and cars were parked along the sides of the streets. The officers had their car's lights and sirens on throughout the chase; Lundberg testified that it was dark outside, that the police car's flashing lights reflected off of the houses and that the sound of the siren was intensified as it echoed off of the houses and cars.
        Appellant testified that on October 9, 1987, he played tennis with a friend, and that after the game they returned to the friend's house and he had one beer. Appellant stated that he drove home after having the beer, and did not believe he was intoxicated. He testified that he ran a stop sign, that he was speeding, and that as he turned a corner going about forty-five miles per hour, his car fishtailed. Further, he stated that once he was on Cromwell, he sped up to about sixty miles per hour, ran another stop sign, turned onto Flaxley, slowed down a little and turned onto Timberview. He stated that it was at this time, while he was on Timberview, that he noticed the police. He then pulled over. Appellant testified that he never heard the sirens because he was playing his radio, that he did not run from the police, and that he had no idea that he would be arrested.
        In his first point of error, appellant contends that the evidence is insufficient to prove beyond a reasonable doubt his guilt of evading arrest, because there is no evidence that he knew that the police were trying to arrest him. Prior to being stopped, appellant had admittedly committed traffic offenses, but he contends that because these offenses do not require the appellant's arrest and because he could have just as likely been given traffic citations, he did not know that the officers were trying to arrest him.
        Appellate review of the sufficiency of the evidence is limited to determining whether, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Marroquin v. State, 746 S.W.2d 747, 750 (Tex. Crim. App. 1988). The jury, as the finder of facts, was authorized to accept or reject any of the testimony from any witness. Mattias v. State, 731 S.W.2d 936, 940 (Tex. Crim. App. 1987). Therefore, the jury was entitled to disbelieve appellant's statements that he did not see or hear the officer's pursuit of him until he reached Timberview and that he did not believe that they would arrest him for traffic citations only.
        The evidence shows that the officers pursued appellant, with their car's lights and siren activated, through a residential neighborhood at speeds exceeding the legal speed limit by at least twenty miles per hour. When the officers began their pursuit, they noted that the appellant appeared to speed up. Lundberg testified that the lights reflected off of the houses and that the sound of the siren was intensified because it echoed off the houses and cars. He further stated that he would have arrested appellant for merely running the stop signs and that he had arrested persons for running stop signs on prior occasions. The jury was entitled to believe that appellant was aware that the officers were pursuing him and would arrest him for failing to stop at stop signs and/or for speeding. The trier of facts is not required to believe the defendant's testimony that he did not evade the police and that he had no idea that he would be arrested, even if this testimony was uncontroverted. Mattias, 731 S.W.2d at 940.
        Citing Smith v. State, 739 S.W.2d 848, 850 (Tex. Crim. App. 1987), appellant correctly states that the offense of evading arrest does not occur "unless and until an individual flees from a peace officer who at that moment and time is attempting to arrest him. 'The gravamen of the offense is the evasion of an arrest, not the evasion of a police officer.'" Id. at 850 (citing Jackson v. State, 718 S.W.2d 724, 726 (Tex. Crim. App. 1986)). Appellant concedes that the police were obviously pursuing him and trying to stop the car, but argues that, because he could "just as likely" have been issued traffic citations as been arrested, he did not "know" that the officers were attempting to arrest him. However, the officers were in a marked car about half a block away from appellant when appellant ran the stop sign. They made a u-turn, put on their lights and siren and pursued the vehicle. Lundberg testified that, as they turned on their lights and siren, appellant appeared to speed up a great deal. This evidence and the other evidence already discussed was sufficient to allow the jury to infer that appellant was aware that the police were pursuing him and that they would arrest him for the traffic violations that he knew that he had committed. Intent and knowledge can be inferred from the acts, words, and conduct of the accused. Dues v. State, 634 S.W.2d 304, 305 (Tex. Crim. App. 1982); Brown v. State, 704 S.W.2d 506, 507 (Tex. App.--Dallas 1986, pet. ref'd). The evidence was sufficient to find appellant guilty of evading arrest. Appellant's first point of error is overruled.
        In his second point, appellant contends that the information charging appellant with evading arrest was fundamentally defective because it did not allege the specific criminal offense for which the officer was attempting to arrest him. He argues that a vital element of the offense of evading arrest is that the appellant must know that the officer is attempting to arrest the appellant for some specific criminal offense, and that the indictment must allege that specific offense.
        Section 38.04 (a) of the Texas Penal Code states, that "a person commits an offense if he intentionally flees from a person he knows is a police officer attempting to arrest him." TEX. PENAL CODE ANN. § 38.04 (a) (Vernon 1974). The Court of Criminal Appeals addressed this very issue in Smith, 739 S.W.2d 848. In that case, the Court recognized that the evading arrest statute "does not have as an element thereof the offense for which the peace officer was attempting to arrest the accused; the statute merely states that it is an offense if the person intentionally flees from a person he knows is a peace officer 'attempting to arrest him.'" 739 S.W.2d at 851.
        Appellant cites Gengnagel v. State, 748 S.W.2d 227 (Tex. Crim. App. 1988), and Ex parte Elliott, 746 S.W.2d 762 (Tex. Crim. App. 1988), as support for his position that the information should have alleged the specific offense that the officer was attempting to arrest the appellant for when he was evading arrest. In Gengnagel, the appellant was charged with the offense of indecent exposure, but the Court found that the indictment was fundamentally defective because it failed to allege with reasonable certainty the acts relied upon to constitute recklessness, which is an element of the offense of indecent exposure. 748 S.W.2d at 228-29. See TEX. PENAL CODE ANN. § 21.08 (Vernon 1989). In Elliott, the Court held that an indictment charging gambling promotion was fundamentally defective because it did not allege that Elliott had received or recorded a "bet or offer to bet," an element of the offense of gambling promotion. 746 S.W.2d at 763-64. See TEX. PENAL CODE ANN. § 47.03 (Vernon Supp. 1988).
        These cases are distinguishable from the case at bar, because in both Gengnagel and Elliott, an element of the offense charged was omitted. The offense for which the officer was attempting to arrest the appellant was not an element of evading arrest. See Smith, 739 S.W.2d at 851. The information clearly tracks the language of the statute and was sufficient to give the appellant notice in order to prepare a defense. See Bollman v. State, 629 S.W.2d 54, 55 (Tex. Crim. App. 1982). Appellant's second point of error is overruled.
        In his third and fourth points, appellant argues that the prosecutor committed reversible error during his cross- examination of the appellant when he injected his own unsworn personal opinion as to appellant's intoxication, causing substantial prejudice to the appellant in both of his cases.
        The following transpired during the State's cross-examination of appellant:
        Q    On that TV show that gave you a warning about intoxilyzers and a breath test, did they also mention something about a blood test at the same time?
 
        A    Yes, sir.
 
        Q    Did they mention them both?
 
        A    Yes, sir.
 
        Q    When did you hear this?
 
        A    October 9th.
 
        Q    No, no, no. Did you see the TV show that warned you that the machines may be faulty on October the 9th?
 
        A    Oh, you're talking about the shows that -- that I'm basing my opinion on?
 
        Q    Yes, sir.
 
        A    I have no idea when I saw those shows.
 
        Q    And do you know exactly what was said in those shows that you don't know about?
 
        A    No, sir.
 
        Q        So you really don't know how those     machines work, do you, Mr. Vail?
 
        A    No, sir.
 
        Q    They could be as accurate as they just could be. You just don't really know.
 
        A    That's possible.
 
        Q    And, yet, you didn't know about the machines, you didn't know how they worked, and you wouldn't give yourself that one or two, two tests opportunity to clear your name. You didn't do that, did you?
 
        A    No, sir.
 
        Q    But you knew for a fact that you were sober as a judge that night?
 
        A    Yes, sir.
 
        Q    Doesn't that strike you as implausible?
 
        A    No, sir.
 
        Q    Well, it strikes me as implausible, Mr. Vail.
 
        MR. MORGAN: Objection.
 
        THE COURT: Sustain the objection.
 
        MR. MORGAN: Sidebar comment. Ask the jury to disregard that.
 
        THE COURT: Disregard the comment. Just ask questions.
 
                MR. MORGAN: Ask for a mistrial.
 
        THE COURT: Deny your request for a mistrial.
        Generally, an instruction to disregard an improper question or remark will cure error. Todd v. State, 598 S.W.2d 286, 293-94 (Tex. Crim. App. 1980); Bolden v. State, 504 S.W.2d 418, 420 (Tex. Crim. App. 1974). This general rule applies except in "extreme cases where it appears that the question or evidence is clearly calculated to inflame the minds of the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on their minds." White v. State, 444 S.W.2d 921, 922 (Tex. Crim. App. 1969). Further, the "Court of Criminal Appeals rarely reverses a conviction of crime solely because an improper question was propounded to the defendant as a witness. To cause reversal the question must be obviously harmful to the defendant." Sensabaugh v. State, 426 S.W.2d 224, 227 (Tex. Crim. App. 1968). The court is to look at the entire record to determine the possibility of injury. Id.
        In light of the entire record, we hold that the statement made by the State was not so inflammatory that the jury would find it impossible to disregard the statement. No other statements of this nature were made by the State. We find that the error was cured by the court's instruction to the jury to disregard. Appellant's third and fourth points are overruled.
        The trial court's judgment is affirmed.
 
                                                          
                                                          ANNETTE STEWART
                                                          JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
88-00793.F
 
 
File Date[01-02-89]
File Name[880793F]