Homer David Holloman v. The State of Texas--Appeal from 5th District Court of Cass County

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In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-10-00113-CR ______________________________ HOMER DAVID HOLLOMAN, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 5th Judicial District Court Cass County, Texas Trial Court No. 2009-F-00266 Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Moseley MEMORANDUM OPINION Homer David Holloman was convicted by a jury of evading arrest or detention with a vehicle. On appeal, Holloman alleges that the trial court s failure to include the offense of fleeing or attempting to elude a police officer as a lesser-included offense of evading detention by use of a motor vehicle constituted reversible error. He also argues that the trial court s judgment was not supported by legally sufficient evidence.1 We affirm the trial court s judgment as modified. I. Holloman Was Not Entitled to a Lesser-Included Offense Instruction In his first point of error, Holloman argues that the trial court erred in overruling his objection that fleeing or attempting to elude a police officer 2 ( fleeing ) should have been included in the jury charge as a lesser-included offense of evading detention by use of a motor vehicle ( evading ).3 The Texas Court of Criminal Appeals has spoken on this very claim in Farrakhan v. State, where the court held that the crime of fleeing was not a lesser-included offense 1 Holloman also complains the evidence was factually insufficient to support his conviction. We have previously explained that in Brooks v. State, 323 S.W.3d 893, 894 95, 912 13 (Tex. Crim. App. 2010) (Cochran, J., concurring), a plurality of the Texas Court of Criminal Appeals abolished the factual sufficiency review established by Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), and its progeny. The plurality and the concurring judges agreed that the Jackson v. Virginia, 443 U.S. 307 (1979), legal sufficiency standard is the sole standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. Brooks, 323 S.W.3d at 894 95, 912 13. Since the Texas Court of Criminal Appeals has abolished factual sufficiency review, we need not address [appellant s] challenge to the factual sufficiency of the evidence. Louis v. State, 329 S.W.3d 260, 267 n.5 (Tex. App. Texarkana 2010, no pet.). 2 TEX. TRANSP. CODE ANN. § 545.421 (Vernon Supp. 2010). 3 TEX. PENAL CODE ANN. § 38.04 (Vernon Supp. 2010). 2 of evading. 247 S.W.3d 720, 724 (Tex. Crim. App. 2008); see McKithan v. State, 324 S.W.3d 582, 593 (Tex. Crim. App. 2010) ( In Farrakhan, we approved of the court of appeals s decision that the fleeing offense was not a lesser-included offense of the charged evading offense even though proof of the charged evading offense may also have shown the fleeing offense. . . . These were not lesser-included offenses of the charged offenses . . . because the State was not required to prove these offenses in establishing the charged offenses, even though the State s evidence may have shown them. ). Utilizing the reasoning employed by our sister court in Farrakhan v. State, which the Texas Court of Criminal Appeals has upheld, we likewise conclude that Holloman was not entitled to an instruction on fleeing since it is not a lesser-included offense of evading. 263 S.W.3d 124, 143 44 (Tex. App. Houston [1st Dist.] 2006), aff d, 247 S.W.3d 720 (Tex. Crim. App. 2008). Holloman s first point of error is overruled. II. Legally Sufficient Evidence Supported the Trial Court s Judgment A. Standard of Review In evaluating legal sufficiency, we review all the evidence in the light most favorable to the verdict to determine whether any rational jury could have found the essential elements of evading arrest or detention with a vehicle beyond a reasonable doubt. Brooks, 323 S.W.3d at 912 (citing Jackson, 443 U.S. at 319); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App. Texarkana 2010, pet. ref d) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). Our rigorous 3 legal sufficiency review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318 19). Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically-correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); see also Grotti v. State, 273 S.W.3d 273, 280 (Tex. Crim. App. 2008); Vega v. State, 267 S.W.3d 912, 916 (Tex. Crim. App. 2008). 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). Evading arrest or detention is a state-jail felony if the actor uses a vehicle while the actor is in flight. TEX. PENAL CODE ANN. § 38.04(b)(1)(B). Thus, the hypothetically-correct jury charge required the State to prove that (1) Holloman; (2) intentionally or knowingly; (3) fled from a person he knew was a peace officer; (4) who was attempting to lawfully detain or arrest him. B. The Sufficient Evidence Uniformed officers Eric White and Shane Lawrence were travelling in a marked patrol car when they passed Holloman s Dodge Diplomat on the road. White noticed Holloman was not 4 wearing his seat belt, and his license plate and registration were expired. Lawrence testified that White reached down and turned his lights on and as soon as he turned his lights on I told him, I said, Corporal, I believe he s trying to run. [Holloman] accelerated. You could hear his motor, the acceleration in the motor as he took off. White testified the patrol car lights were on and sirens were blaring. Holloman drove at a high rate of speed, leading White, Lawrence, and other officers who had joined the pursuit on a lengthy chase. During the attempted flight, Holloman disregarded at least seven stop signs. At one point, White testified Holloman ran [a] stop sign . . . and went across the highway into the ditch and narrowly missed a westbound car. Then, Holloman took the car off into a pasture. [H]e throwed [sic] the tread off of his right front tire. After Holloman travelled off-road[,] he jump[ed] out of the car and start[ed] running. [H]e fled on foot up the hill and toward the wood line. Lawrence exited the patrol car driven by White and followed Holloman on foot. Joining the pursuit, Officer Richard Lewis drove [his] patrol car up the hill and got out and held him at gunpoint until Trooper Lawrence could get up there and place him in handcuffs. 4 Viewing all the evidence in the light most favorable to the verdict, we find that a rational jury could have found, beyond a reasonable doubt, that Holloman intentionally or knowingly fled 4 Holloman argues that a rational jury could not convict Defendant of such offense for the reason that Officers White and Lawrence were unable to identify Appellant as the operator of the Dodge Diplomat. This argument is without merit. Lawrence, White, and Lewis all testified Holloman was the driver of the vehicle, and there was testimony that no other people were in the vehicle or exited the vehicle. 5 from police officers who were attempting to lawfully detain or arrest him. Accordingly, we conclude the evidence was legally sufficient to support the trial court s judgment. Holloman s last point of error is overruled. III. Judgment is Reformed to Reflect Holloman s Plea of Not Guilty The Texas Rules of Appellate Procedure give this Court authority to reform judgments and correct typographical errors to make the record speak the truth. TEX. R. APP. P. 43.2; French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Rhoten v. State, 299 S.W.3d 349, 356 (Tex. App. Texarkana 2009, no pet.). Our authority to reform incorrect judgments is not dependent on the request of any party, nor does it turn on a question of whether a party has or has not objected in trial court; we may act sua sponte and may have a duty to do so. Rhoten, 299 S.W.3d at 356 (citing Asberry v. State, 813 S.W.2d 526, 531 (Tex. App. Dallas 1991, writ ref d). The judgment in this case reflects that Holloman pled guilty to the offense. This was incorrect. We modify the judgment to reflect Holloman s plea of [n]ot guilty. IV. CONCLUSION As modified, we affirm the judgment. Bailey C. Moseley Justice Date Submitted: Date Decided: March 17, 2011 March 18, 2011 6 Do Not Publish 7

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