Patrick Lee Campbell, Jr. v. State ( 2008 )

Affirmed and Memorandum Opinion filed April 17, 2008

Affirmed and Memorandum Opinion filed April 17, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-06-01118-CR

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PATRICK LEE CAMPBELL, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 122nd District Court

Galveston County, Texas

Trial Court Cause No. 05CR3222

M E M O R A N D U M   O P I N I O N

A jury convicted appellant Patrick Lee Campbell, Jr. of felony evading arrest and assessed punishment at twenty-four months= confinement in the State Jail Division of the Texas Department of Criminal Justice and a $10,000.00 fine.  In a single issue, Campbell contends that the evidence is factually insufficient to support his conviction because the overwhelming weight of the evidence established that appellant could not be identified as the suspect who was fleeing from police officers.  We affirm.

Factual Background

Around 1:30 a.m. on November 16, 2005, a security guard at Amoco Pipeline in Texas City, Texas, in Galveston County, called the Texas City Police Department to report two people on the premises possibly breaking into cars.  The security guard reportedly scuffled with one of them, but the suspects fled on foot.  It was also reported that a small foreign car, either a Toyota or a Honda, was seen leaving the premises.^[1] The dispatcher informed three patrol officers, Officer Brett Cyr, Officer Allen Bjerke, Jr., and Officer Earl Mendenhall, of the report.  Each of the officers was in uniform and alone in a marked police vehicle, and each responded to the dispatcher=s call. 

Bjerke testified that as he searched the area he saw what he believed was the suspect car, and notified Mendenhall that he was going to conduct a traffic stop on it.  Bjerke activated his emergency lights and the car began to pull over.  At the same time, Mendenhall arrived and positioned his vehicle in front of the car at an angle.  As Bjerke got out of his vehicle, the driver of the suspect car accelerated very rapidly, went around Mendenhall=s vehicle, and sped away.  Bjerke did not get a look at the suspect at that time.  Bjerke and Mendenhall pursued the car, which was traveling at high speeds, at times in excess of seventy miles per hour.  The pursuit continued from Texas City into La Marque, where the car began turning onto residential streets.  Eventually, the driver of the car lost control, spun around, and came to a stop.  Bjerke stopped a few feet from the car, a Honda, and began to get out of his vehicle when the Honda accelerated quickly, causing its tires to smoke.  The Honda went past Bjerke=s vehicle, struck Mendenhall=s vehicle, and continued down the street.  Eventually, however, the driver of the Honda lost control of the car again and crashed into a fence.  By the time Bjerke reached the car, it was empty.  He did not see anyone get out of the car.

Cyr was only briefly involved in the pursuit of the suspect car, catching up to it in La Marque.  He testified that he saw a lot of smoke, and people Awrecking out.@  As he pulled up, he saw a small white car come out of the smoke and almost hit him head-on.  The car then veered, spun out, and wrecked.  The suspect fled on foot.  Cyr could not identify anybody in the car.

Mendenhall testified that, when he positioned his vehicle in front of the Honda as Bjerke attempted to conduct the traffic stop, he got a Agood look@ at the suspect as he shined his spotlight directly in the suspect=s face.^[2] He could see appellant Alooking left and right,@ which gave him the impression he was trying to find an escape route.  Mendenhall further testified that he Acould clearly see him@ and that he was able to view him for six or seven seconds.   Mendenhall identified appellant in court as the suspect he saw that night. 

After the suspect hit the passenger side door of Mendenhall=s police vehicle, Mendenhall testified that the suspect continued to flee until he crashed.  By the time Mendenhall reached the Honda, it was unoccupied, and the driver could not be seen.  A dispatcher informed Mendenhall that the address of the registered owner of the Honda was 847 Holly in La Marque, which was close to where the Honda finally came to a stop.  Mendenhall testified he and a La Marque officer ran to the house and saw Alice Campbell, appellant=s sister, standing on the front porch.  She allowed them inside, where they searched for the suspect, but did not find him.  Campbell confirmed that she owned the Honda. Mendenhall testified that, when he asked her who the last driver was, she answered that it was Patrick Campbell, her brother.  Mendenhall testified that he recognized appellant in a photograph in a collage on a wall of the house, and Campbell confirmed that the person in the photograph was her brother.

The State also called Alice Campbell, who testified that she had been asleep in the house when police arrived and knocked on her door. She testified that she owned the Honda, and she had driven it home from work that day.  She testified that she did not normally lock her car, and sometimes she has left the keys in the car.  She could not remember if she locked the car that night.  She also testified that she sometimes left the front door of the house unlocked.  Campbell testified that appellant had never driven her car and she did not let anyone other than her mother drive it, but she acknowledged that appellant had ridden in the car with her.  Campbell testified that, when the officers came to her house, one of them asked if she had a picture of her brother, and, as she looked for one on a table, the officer asked if that was him in a photograph on the wall.  She confirmed that it was.  She also testified that the photograph, which depicted appellant and a male friend, was the only picture of a black male on the wall.  Recalled during the defense=s presentation of its case, Campbell clarified that she meant that there were no pictures of African-American men other than appellant in the house.  She also denied telling Mendenhall that appellant had driven her car.  She explained that what she had told the officer was that the last time she had seen appellant was that morning, when he had come to her job to ask her for money.

Audrey Dickson-Walker, appellant=s mother, testified in his defense.  She testified that she and her husband owned the house at 847 Holly, and that appellant had lived there previously but never had keys to the house.  She also testified that she and her husband lived in Texas City, but appellant was not at home with her on the night of the incident.  Ms. Dickson-Walker further testified that she hung the photographs on the wall of the Holly house.  She stated that there were about five pictures on the wall, and, with the exception of the one photograph in the collage, appellant was the only adult male in the photographs.  In the collage, there was one photograph of appellant with a male friend.  Ms. Dickson-Walker acknowledged that her daughter, Alice Campbell, was sometimes not as careful as she should be about keeping the house and car locked, and that Campbell sometimes left her keys in her car.  She testified that appellant did not own a car, but he had borrowed her truck a few times.  She also testified that she never saw appellant drive Campbell=s car, and to her knowledge, he had never driven it.

The defense also called Delia Randle, who testified that appellant was her boyfriend and that he was living with her and her daughter at her home in Texas City at the time of the incident.  She testified that, on the night of November 16, appellant got home around 9:00 p.m.  That night, she talked on the phone in the bedroom, while appellant watched television in another room.  She went to bed around 2:00 a.m.  Randle testified that she never saw appellant leave the house that night.  On cross-examination, Randle admitted that she did not go to the police with this information, but testified that in January 2006, she gave a written statement to the District Attorney=s office in which she stated that appellant was at her house at the time of the incident and so could not be the man the police were chasing. 

Along with the charge of evading arrest, appellant was also tried in a separate cause for aggravated assault on a public servant before the same jury.  The jury found appellant guilty of evading arrest, but found him not guilty of the aggravated assault.  This appeal of the evading arrest conviction followed.

Analysis of Appellant=s Issue

The State had the burden of proving, beyond a reasonable doubt, that appellant intentionally fled from a person he knew was a peace officer attempting to lawfully arrest or detain him.  See Tex. Penal Code ' 38.04(a).  Appellant contends that the evidence that he was the suspect who fled is factually insufficient to sustain his conviction because the only evidence the State presented was Officer Mendenhall=s testimony that he was able to identify appellant after viewing his face for six or seven seconds, and his subsequent identification of appellant after seeing appellant=s photograph on a wall that contained no other photographs of a black male in the house where Alice Campbell, appellant=s sister, lived.  Appellant points out that Mendenhall=s testimony conflicts with the testimony of Campbell, who testified that appellant had not been to her house on the evening of the incident and did not drive her car, and the testimony of appellant=s girlfriend, Delia Randle, who testified that appellant was with her that night, and that she had given a written statement to that effect to the District Attorney=s office. Appellant also complains that the security guard who reported struggling with the suspect was not called to testify, and the police failed to fingerprint Campbell=s car as a means of identifying the suspect.  We address appellant=s contentions below.

A.      Standard of Review

When conducting a factual‑sufficiency review, we view all of the evidence in a neutral light.  See Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996).  We may set the verdict aside if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or (2) the verdict is against the great weight and preponderance of the evidence.  Watson v. State, 204 S.W.3d 404, 414B15 (Tex. Crim. App. 2006) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)).  However, while we may disagree with the jury=s conclusions, we must exercise appropriate deference to avoid substituting our judgment for that of the jury, particularly in matters of credibility.  Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005); see also Watson, 204 S.W.3d at 414 (stating that a court should not reverse a verdict it disagrees with unless it represents a manifest injustice, though supported by legally sufficient evidence).  Thus, while we are permitted to substitute our judgment for the jury=s when considering credibility and weight determinations, we may do so only to a very limited degree.  Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).

B.      The Evidence is Factually Sufficient

Appellant first contends the testimony of Alice Campbell, appellant=s sister, and Delia Randle, appellant=s girlfriend, contradicts Officer Mendenhall=s positive identification of appellant as the driver of the white Honda.  Mendenhall testified that when the suspect=s car pulled off the road in front of Officer Bjerke, he stopped his car in front of the Honda and shined his spotlight directly on the suspect=s face. Mendenhall testified he was able to clearly see the suspect=s face for six or seven seconds.  Later, at the home of Alice Campbell, appellant=s sister and the owner of the Honda, Mendenhall recognized appellant in a photograph as the driver of the Honda he saw earlier.  The photograph was admitted into evidence for the jury=s consideration.  Mendenhall also positively identified appellant in the courtroom as the driver of the Honda.  Further, on cross-examination, Mendenhall testified that there was Ano possibility@ that he mistakenly identified appellant as the driver.  Mendenhall also testified that Alice Campbell told him that appellant was the last person to drive her car.

In contrast, Alice Campbell denied that she told Mendenhall that appellant was the last person to drive her car.  However, she admitted that she normally does not lock the car and sometimes leaves her keys in the car.  She also did not know where she had left her keys the night the car was taken.  She testified that appellant did not have her permission to drive her car, but offered no information as to who might have been driving it that night. 

Debra Randle testified that appellant lived with her and that he was with her on that night, watching television in another room while she talked on the phone in the bedroom until she went to bed around 2:00 a.m. Randle also testified that she made a written statement that appellant was at her house that night and delivered it to the District Attorney=s office, some two months after the incident.  The substance of this statement consisted of the following sentence:  ATo whom this may concern on the morning of 11-16-05 at 1:38 am Patrick Lee Campbell was at my house, so that couldn=t have been Patrick Lee Campbell that the police were chasing.@  The statement contained no other details or contact information for Randle. 

Contradictory testimony is a factor for the jury to consider, but merely because the testimony is contradictory does not mean that the evidence is factually insufficient to support appellant=s conviction. Unless the record clearly reveals a different result is appropriate, we must defer to the jury=s determination concerning what weight to give contradictory testimonial evidence because its resolution often turns on the jury=s evaluation of the credibility and demeanor of the witnesses.  See Watson, 204 S.W.3d at 414; Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000). Although we may disagree with the jury=s conclusions, we may do so only Ato a very limited degree.@  See Marshall, 210 S.W.3d at 625. 

Here, we cannot say that the jury=s decision is manifestly unjust merely because the jury resolved conflicting views of the evidence in favor of the State.  Officer Mendenhall, a veteran police officer, testified that he clearly saw appellant=s face for several seconds as he shined a spotlight on him, and he later recognized appellant in a photograph at the home of Alice Campbell, appellant=s sister and the owner of the Honda.  Further, Mendenhall positively identified appellant in court as the suspect he saw driving the Honda that night.  Although appellant appears to suggest that Mendenhall=s identification of appellant was a foregone conclusion because the only pictures of a black male in the house were of appellant, the photograph at issue showed appellant with a black male friend, and the jury was free to consider the photograph as well as the other evidence presented. 

Next, appellant complains that the security guard who initially reported seeing two suspects, and scuffled with one of them, was not called to testify concerning the suspect=s identity, and the police did not fingerprint the Honda, which appellant contends Awould have been a sure way to identify the suspect.@  However, the State can meet its burden without such evidence, especially in light of the evidence of Mendenhall=s positive identification of appellant and the other evidence of appellant=s guilt in this case.  Merely because the State did not present evidence of the type appellant suggests does not render the State=s evidence factually insufficient. 

Our review of the record as a whole, with consideration given to all of the evidence both for and against the jury=s finding, has not caused us to conclude that the proof of appellant=s guilt is so greatly outweighed by contrary proof as to render his conviction clearly wrong or manifestly unjust, or that the verdict is against the great weight and preponderance of the evidence.  Therefore, we hold that the evidence is factually sufficient to support the jury=s verdict.  We overrule appellant=s sole issue.

Conclusion

We overrule appellant=s issue and affirm the trial court=s judgment.

/s/      Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed April 17, 2008.

Panel consists of Justices Yates, Fowler, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Testimony varied concerning the color of the small foreign car reported leaving Amoco Pipeline.  Officer Bjerke testified that they were unsure about the color of the car initially.  Cyr testified that one of the other officers reported that they were pursuing a white compact car, but he agreed on cross-examination that the original report indicated that the car was red. Mendenhall testified that initially the car was believed to be red, but that was later revised to an unknown color.

^[2]  Although Mendenhall tried to get appellant=s face on his vehicle=s camera, he explained that he was unable to do so because of the glare from his spotlight.