Avis Lavar King v. State ( 2019 )

Opinion issued October 24, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-00335-CR
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AVIS LAVAR KING, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 56th District Court
Galveston County, Texas
Trial Court Case No. 17-CR-1219
MEMORANDUM OPINION
A jury convicted appellant, Avis Lavar King, of evading arrest with a motor
vehicle,1 found two enhancement paragraphs true, and assessed punishment at 32
years’ confinement and a $1,500 fine. In two issues on appeal, appellant contends
1
See TEX. PENAL CODE § 38.04(b)(2)(A).
that (1) the trial court erred in refusing to charge the jury on the defense of mistake-
of-fact and (2) the evidence is legally insufficient. We affirm.
BACKGROUND
On May 1, 2017, Joseph Paul Rivera parked his new, red Mercedes outside a
doughnut shop in Galveston and went inside. When Rivera left the store, he
discovered that his car had been stolen. He called 911 and reported that, based on
what someone at the scene had told him, two white men had stolen the car. Rivera
believed that there was a second key fob in his glove compartment, which allowed
the car to be taken without the keys. He later learned that his car had been in an
accident and was a total loss.
R. Hernandez, an investigator for Gulf Coast Bail Bonds, testified that he was
traveling on Broadway in Galveston when he saw a red Mercedes back into a pick-
up truck at an intersection. The driver of the truck got out to exchange information
with the driver of the Mercedes, but the Mercedes driver, a black male, later
identified as appellant, sped away. Hernandez flagged down a Galveston Police
officer, and, while the officer was turning around, Hernandez followed appellant for
a block and a half. The police officer soon caught up, and Hernandez moved aside
to let the officer take over the pursuit.
Officer J. Rupert of the Galveston Police Department then began pursuit of
appellant. Traffic was heavy, so Rupert activated his lights and sirens. When he was
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four or five blocks behind the Mercedes, Rupert noticed that its driver began running
stop signs. After appellant had run four or five stop signs without slowing down,
Rupert drove one block over, hoping that the Mercedes would “double back.”
Appellant, as Rupert had hoped, doubled back and Rupert met him head-on. Rupert
positioned his patrol car, a Ford Explorer with “Galveston Police” on the side and
overhead lights and sirens activated, to block the middle of the street, leaving a small
space on either side. Appellant maneuvered the Mercedes around the patrol car and
continued at a high rate of speed for another block and a half, before running another
stop sign and colliding with a car.
The Mercedes flipped on its side, struck a building and power lines, and
landed in a nearby yard. Appellant, the only occupant of the vehicle, was
uncooperative with police and would not put his hands behind his back. It took three
officers to detain him. The red Mercedes was, in fact, Rivera’s car, which had been
stolen from the doughnut shop. Whether appellant stole it or received it from the
two white males mentioned in the 911 call, is not reflected in the record.
Appellant testified at trial that he had been in the hospital at UTMB on the
morning of May 1st and that he was released sometime around noon. Because there
was no one to pick him up, appellant began walking. He called his girlfriend from
a nearby service station and told her that he was trying to get a ride back to Houston.
Appellant testified that he encountered two white men in a red Mercedes at a
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convenience store and asked them for a ride to Houston. He claimed that the two
men then gave him the car, which he drove off in by himself. He claimed that he
intended to later return the car to the convenience store, though he did not know the
two men.
While driving the Mercedes, appellant testified that he ran into the rear end of
a pickup truck. Because the driver of the truck got out and appeared very angry,
appellant said that he drove away and the angry man in the truck followed him. When
confronted with Officer Rupert’s dash-cam video from the ensuing chase, appellant
claimed that he never knew that an officer was chasing him, even though the officer’s
lights and sirens were activated. Appellant thought that the angry man in the pick-
up truck was still chasing him and that he was involved in a “road rage” incident.
Appellant testified that it was not until Rupert’s marked unit tried to cut him
off that he noticed that police were involved. Appellant claimed that when he saw
the unit’s lights on, he knew that he needed to stop, but, due to his speed, he went
around the officer to avoid hitting him. As he did so, appellant collided with another
motorist.
SUFFICIENCY OF THE EVIDENCE
In issue two, appellant contends that “the evidence is insufficient, as a matter
of law, to support appellant’s conviction for the offense of evading arrest in a motor
vehicle.” Specifically, appellant argues that “there is no possible way a jury could
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determine whether Appellant knew Rupert was pursuing him and trying to detain
him; attempting to lawfully arrest him; or that Appellant even knew that Rupert was
attempting to arrest or detain him.” Although raised as his second issue, we address
appellant’s sufficiency issue first because in it he seeks an acquittal. See Price v.
State, 502 S.W.3d 278, 281 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (“We
address appellant’s second issue first because it challenges the sufficiency of the
evidence and seeks rendition of a judgment of acquittal.”).
Standard of Review and Applicable Law
We review the legal sufficiency of the evidence by considering all of the
evidence in the light most favorable to the jury’s verdict to determine whether any
rational trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318–19 (1979); Williams v.
State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Our role is that of a due- process
safeguard, ensuring only the rationality of the trier-of-fact’s finding of the essential
elements of the offense beyond a reasonable doubt. See Moreno v. State, 755 S.W.2d
866, 867 (Tex. Crim. App. 1988). We give deference to the responsibility of the
factfinder to fairly resolve conflicts in testimony, weigh evidence, and draw
reasonable inferences from the facts. Williams, 235 S.W.3d at 750. The jury, as the
judge of the facts and credibility of the witnesses, may choose to believe or not to
believe the witnesses, or any portion of their testimony. Sharp v. State, 707 S.W.2d
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611, 614 (Tex. Crim. App. 1986); Jenkins v. State, 870 S.W.2d 626, 628 (Tex.
App.—Houston [1st Dist.] 1994, pet. ref’d).
A person commits the offense of evading arrest with a motor vehicle if he (1)
intentionally flees, (2) from a person he knows to be a police officer attempting
lawfully to arrest or detain him, and (3) he uses a vehicle while in flight. See TEX.
PENAL CODE § 38.04; Hazkell v. State, 616 S.W.2d 204, 205 (Tex. Crim. App. 1981);
Redwine v. State, 305 S.W.3d 360, 362 (Tex. App. —Houston [14th Dist.] 2010, pet
ref’d). “A person commits a crime under section 38.04 only if he knows that a police
officer is attempting to arrest him but nevertheless refuses to yield to a police show
of authority.” Thompson v. State, 426 S.W.3d 206, 209 (Tex. App.—Houston [1st
Dist.] 2012, pet. ref’d).
Evidence that a police officer is asserting authority and attempting to arrest or
detain an individual includes use of emergency lights and sirens, pointing to a driver
to pull the vehicle over, and issuing verbal commands. Duvall v. State, 367 S.W.3d
509, 513 (Tex. App.—Texarkana 2012, pet. ref’d). “‘[F]leeing’ is ‘anything less than
prompt compliance with an officer’s direction to stop,’ and ‘fleeing slowly is still
fleeing.’” Lopez v. State, 415 S.W.3d 495, 497 (Tex. App.—San Antonio 2013, no
pet.) (quoting Horne v. State, 228 S.W.3d 442, 446 (Tex. App.—Texarkana 2007,
no pet.) and Mayfield v. State, 219 S.W.3d 538, 541 (Tex. App.—Texarkana 2007,
no pet.)); see also Baines v. State, 418 S.W.3d 663, 670 (Tex. App.—Texarkana
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2010, pet. ref’d) (“The relevant inquiry is whether there was an attempt to flee or
delay the detention.”). Courts may consider speed, distance, and duration of pursuit
in determining whether a defendant intentionally fled, but “no particular speed,
distance, or duration is required to show the requisite intent if other evidence
establishes such intent.” Griego v. State, 345 S.W.3d 742, 751 (Tex. App.—
Amarillo 2011, no pet.); Mayfield, 219 S.W.3d at 541 (“The statute does not require
high-speed fleeing, or even effectual fleeing. It requires only an attempt to get away
from a known officer of the law.”).
Analysis
Appellant claims the evidence is legally insufficient, arguing that “there is no
possible way a jury could determine whether Appellant knew Rupert was pursuing
him and trying to detain him; attempting to lawfully arrest him; or that Appellant
even knew that Rupert was attempting to arrest or detain him.” Thus, appellant
challenges only the second element of evading arrest with a motor vehicle, i.e.,
whether Rupert was a person appellant knew to be a police officer attempting
lawfully to arrest or detain him.
Appellant relies on his own testimony that he believed he was being chased
by the angry man whose pick-up truck he claimed to have bumped, presumably
Hernandez. Even if Hernandez initiated the chase, there was other sufficient
evidence from which a rational jury could have concluded beyond a reasonable
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doubt that appellant did, in fact, know that Rupert was a police officer and was trying
to detain him. Rupert testified that, after taking over the chase, he activated his
overhead lights and sirens. Though appellant claimed not to have seen or heard
them, the jury, having viewed Rupert’s dash-cam video, was entitled to disbelieve
appellant’s testimony. See Sharp, 707 S.W.2d at 614 (holding that jury may
disbelieve any portion of witness’s testimony). Rupert was following appellant in a
unit marked “Galveston Police.” Rupert testified that there were two points at which
appellant should have seen or heard Rupert’s pursuit: First, when Rupert was
approximately one block from appellant with his lights and sirens activated, and
second, when Rupert pulled in front of appellant and appellant drove straight toward
him. Even appellant admitted that when he saw Rupert in the road in front of him,
“I observed that he wanted me to stop.” Even though appellant claimed that he could
not stop because of his speed, the jury could have disbelieved his testimony,
especially since appellant continued past the officer for another block and a half
before running a red light and crashing. See id.
Thus, there was sufficient evidence for a rational jury to conclude beyond a
reasonable doubt that Officer Rupert was a person appellant knew to be a police
officer attempting lawfully to arrest or detain him. See Williams, 235 S.W.3d at 750.
We overrule issue two.
JURY CHARGE ON MISTAKE OF FACT
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In his first issue, appellant contends the trial court “erred in not allowing the
defense of mistake of fact to be included in the jury charge.” Specifically, appellant
argues that “evidence was adduced at trial that [appellant] did not know that Rupert,
a police officer, was indeed attempting to arrest or detain appellant.”
Standard of Review and Applicable Law
It is a defense that the defendant “through mistake formed a reasonable belief
about a matter of fact if his mistaken belief negated the kind of culpability required
for commission of the offense.” TEX. PENAL CODE § 8.02(a). “Kind of culpability”
refers to the mental state required for criminal responsibility. Celis v. State, 416
S.W.3d 419, 430–31 (Tex. Crim. App. 2013). Thus, a mistake-of-fact defense turns
on the mistaken belief of the defendant, not others, and considers the conduct of
others only to the extent that it contributes to the defendant’s belief. Montgomery v.
State, 588 S.W.2d 950, 953 (Tex. Crim. App. [Panel Op.] 1979); Johnson v. State,
734 S.W.2d 199, 203–04 (Tex. App.—Houston [1st Dist.] 1987, pet. ref’d).
If the evidence raises a mistake-of-fact defense and the defendant requests an
instruction, the trial court must instruct the jury on the defense. Jackson v. State, 646
S.W.2d 225, 226–27 (Tex. Crim. App. 1983); Williams v. State, 930 S.W.2d 898,
902 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d). The trial court must do so
regardless of the strength of the evidence. Anderson v. State, 11 S.W.3d 369, 372
(Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). The reasonableness of the
9
defendant’s mistaken belief is a question for the jury. Granger v. State, 3 S.W.3d 36,
39–40 (Tex. Crim. App. 1999); Anderson, 11 S.W.3d at 372. But, if the evidence,
when viewed in a light most favorable to the defendant, does not establish a mistake-
of-fact defense, an instruction is not required. Id.
Analysis
Appellant contends that he was entitled to a mistake-of-fact instruction
because he “asserted throughout his testimony he did not know a police officer was
pursuing him” and that “he thought a civilian, Hernandez, was angry and was
attempting to stop him and commit a road rage act as a result of [appellant] bumping
into his truck.”
Even if we were to agree that there is a question of fact regarding whether
appellant was aware that police were trying to detain him when the chase started,
uncontroverted evidence shows that when Rupert pulled in front of him to block the
road, appellant was no longer mistaken about the fact that the police wanted to detain
him. Testimony on this issue was as follows:
[Defense Counsel]: You’ve seen videos here and you’ve heard
testimony. At some point an officer went in pursuit of you. You heard
all of that testimony?
[Appellant]: Yes, sir.
[Defense Counsel]: When you were driving away after this bump, what
was your intention at that time?
[Appellant]: To get away from the gentleman that was chasing me.
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[Defense Counsel]: Did you have any idea that the police were after
you?
[Appellant]: No, sir. No, sir. Only time I had that idea was whenever
I seen the officer try to cut me off and to avoid hitting him I went
around. That’s the only thing I can think of.
****
[Defense Counsel]: You just mentioned to the jury that you actually did
see an officer head on?
[Appellant]: Yes, sir.
[Defense Counsel]: What was your thought in terms of seeing that
officer facing you?
[Appellant]: Well, I was trying to avoid hitting him. That’s why I went
around.
****
[Defense Counsel]: What kind of signals, if any, did you see from the
police car when it’s coming towards you?
[Appellant]: I really don’t recall. I know his lights were on. That’s
pretty much it.
[Defense Counsel]: And when you say “his lights were on”—
[Appellant]: The top, the top lights, yes, sir.
[Defense Counsel]: Did he have a spotlight on?
[Appellant]: I can’t recall.
[Defense Counsel]: Did you have a siren going?
[Appellant]: Yes, I believe the siren was going.
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[Defense Counsel]: Did he have any kind of microphone or bullhorn?
[Appellant]: No, sir.
[Defense Counsel]: Did you—from what you observed, did you think
he wanted you to stop?
[Appellant]: Well, yeah, I observed that he wanted me to stop, but I was
going so fast and as soon as he came and hit the corner I was like already
there so I went around him.
Even if appellant initially believed that the person chasing him through the
neighborhood was not a police officer, appellant certainly knew, and testified that
he knew, that when the officer pulled in front of him with lights and sirens on, the
police officer wanted him to stop. Whether appellant was able to stop does not go
to a mistake-of-fact defense, but was a credibility question for the jury to decide.
But, appellant, by his own testimony, was aware at this point in the chase that a
police officer was trying to detain him. See Witherspoon v. State, 671 S.W.2d 143,
144 (Tex. App.—Houston [1st Dist.] 1984, no pet.) (holding that, even though
appellant may have initially entered apartment by mistake, he was not entitled to
mistake-of-fact instruction when he left and re-entered apartment, raping victim
inside). As such, the trial court did not err in denying appellant a mistake-of-fact
charge.
We overrule issue one.
CONCLUSION
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We affirm the trial court’s judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Keyes and Landau.
Do not publish. TEX. R. APP. P. 47.2(b).
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