Joseph Eric Pattum v. The State of Texas--Appeal from 260th District Court of Orange County

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-05-420 CR
____________________
JOSEPH ERIC PATTUM, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 260th District Court
Orange County, Texas
Trial Cause No. D-050225-R
MEMORANDUM OPINION

A jury convicted appellant Joseph Eric Pattum of felony evading detention or arrest and assessed punishment at two years of confinement in a State Jail facility and a $7,500.00 fine. (1) In this appeal, Pattum challenges the legal and factual sufficiency of the evidence supporting his conviction. We affirm.

 
Background

Officer James Earl Davis, Jr. of the Orange Police Department testified that on February 24, 2005, dispatch sent him to the Oaks area of Orange to attempt to locate a silver Pontiac Grand Am. Officer Davis was wearing his uniform and driving a marked patrol vehicle equipped with lights and sirens. Upon initially driving through the Oaks area, Officer Davis saw a silver Pontiac Grand Am, but the first three characters of the vehicle's license plate did not match those of the license plate number Officer Davis had obtained from dispatch. (2) Officer Davis decided to pass through the area a second time, and as he approached the area of Cypress and Simmons, he saw the same vehicle again pass in front of him, so he decided to check it again. As the vehicle passed him, Officer Davis observed that the driver was a large, black male wearing a blue upper garment. Officer Davis testified that with the exception of the black male driving the Grand Am, he did not see any other occupants. Officer Davis pulled onto the street and quickly accelerated, but he could not catch the Grand Am. Officer Davis followed the Grand Am onto Park Street, and he maintained a high rate of speed in an attempt to overtake the Grand Am. Officer Davis described the area as residential, and he stated that although his speed was approximately fifty-five miles per hour, he could not catch the Grand Am. Officer Davis unsuccessfully attempted to cut the Grand Am off at Fifth Street, and he could see the end of the Grand Am as he approached John Street. As Officer Davis turned onto Fifth Street from John Street, he activated his emergency lights and siren to attempt to stop the driver. Officer Davis testified that the driver had a direct view of the patrol vehicle with its lights activated. According to Officer Davis, the Grand Am ran two stop signs during the pursuit. Officer Davis estimated he pursued the Grand Am for about fourteen blocks before he activated his lights.

As Officer Davis approached the area of Second and Burton, he attempted to slow down, and Officer Davis almost had an accident after his vehicle began to skid. Officer Davis lost sight of the Grand Am at that time. As Officer Davis continued down Second Street toward Morrell, he saw the Grand Am with no one inside and stopped in the middle of the road. Officer Davis exited his vehicle and observed a white vehicle, whose driver began honking. The driver of the white vehicle pointed toward Schley, so Officer Davis began running in that direction. Officer Davis then observed a black male wearing a blue shirt, and Officer Davis began running after him. Although Officer Davis told the subject to stop, the subject began to run. According to Officer Davis, the subject took his shirt off and threw it on the ground. Officer Davis testified that the shirt the subject removed was the same color as the shirt he saw the driver of the Grand Am wearing. At trial, Officer Davis identified Pattum as the individual driving the car that he chased that day.

As Officer Davis continued to chase Pattum, Pattum became winded and stopped running. Drawing his gun, Officer Davis told Pattum to get on the ground, and Pattum responded with an obscenity and began running again. Officer Davis eventually sprayed Pattum with pepper spray and instructed him to get on the ground. However, Pattum again turned toward Officer Davis, so he sprayed Pattum again with pepper spray and pushed him onto the ground. Officer Davis informed Pattum he was under arrest for evading detention in a vehicle.

Officer Davis testified his vehicle is equipped with a videotape recorder, and he identified State's Exhibit No. 2 as an accurate depiction of his pursuit of Pattum. According to Officer Davis, the videotape recorder is activated when he turns on his lights. However, Officer Davis testified that the camera does not actually start recording until approximately five seconds after he activates his lights. Officer Davis acknowledged the videotape does not show the silver Grand Am because the driver turned before the recording began.

Pattum's Issue

Pattum's sole issue challenges the legal and factual sufficiency of the evidence supporting his conviction. In reviewing issues of legal sufficiency, an appellate court views the evidence in the light most favorable to the verdict to determine whether a rational fact finder could have found each element of the offense beyond a reasonable doubt. Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003) (citing Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). In reviewing factual sufficiency, we consider all of the evidence in a neutral light and determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). The evidence may be factually insufficient in two ways:

First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. This standard acknowledges that evidence of guilt can "preponderate" in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can "outweigh" the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.

 

Id. at 484-85. An appellate court "must give due deference to the fact finder's determinations concerning the weight and credibility of the evidence. . . ." Swearingen, 101 S.W.3d at 97. It is the sole province of the jury to determine the credibility of witnesses and to weigh contradictory testimony. Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997).

Section 38.04 of the Penal Code provides:

(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.

(b) An offense under this section is a Class B misdemeanor, except that the offense is:

(1) a state jail felony if the actor uses a vehicle while the actor is in flight and the actor has not been previously convicted under this section[.]

 

Tex. Pen. Code Ann. 38.04 (Vernon 2003).

Officer Davis testified that the driver of the Grand Am was a large, black male wearing a blue garment. Officer Davis could not catch the Grand Am despite driving approximately fifty-five miles per hour through a residential area, and because the Grand Am ran two stop signs. Officer Davis activated his emergency lights and siren after pursuing the Grand Am for approximately fourteen blocks. The driver of the Grand Am had a direct view of Officer Davis's patrol vehicle with its lights activated. After Officer Davis found the Grand Am in the middle of the road with no one inside, he saw a black male in a blue shirt running. The black male removed his shirt, threw it on the ground, and continued to run until Officer Davis sprayed him with pepper spray. Officer Davis testified the shirt the black male removed was the same color as the shirt worn by the driver of the Grand Am. Officer Davis identified Pattum as the subject in the Grand Am that he had pursued.

Viewing the evidence in the light most favorable to the verdict, a rational jury could have found Pattum guilty of felony evading detention or arrest in a vehicle. See id.; see also Swearingen, 101 S.W.3d at 95. The evidence is legally sufficient to support the verdict. Furthermore, the evidence supporting the verdict is not too weak, nor is the contrary evidence so strong that the burden of proof could not be met. See Zuniga, 144 S.W.3d at 484-85. The evidence is factually sufficient to support the verdict. We overrule Pattum's issue and affirm the trial court's judgment.

AFFIRMED.

 

HOLLIS HORTON

Justice

Submitted on April 20, 2006

Opinion Delivered May 31, 2006

Do Not Publish

 

Before McKeithen, C.J., Gaultney and Horton, JJ.

1. Pattum stipulated to prior convictions for aggravated assault and evading detention. However, we note that Pattum was charged with a state jail felony, not a third-degree felony. See Tex. Pen. Code Ann. 38.04(b)(1) (Vernon 2003) (Evading arrest or detention is a state jail felony if the actor uses a vehicle while in flight and he "has not been previously convicted under this section."); Tex. Pen. Code Ann. 38.04(b)(2) (Evading arrest or detention is a third-degree felony if the actor uses a vehicle while he is in flight "and the actor has been previously convicted under this section.").

2. Dispatch had transposed the first three characters of the license plate with the last three characters.