Doris Williams v. State ( 2005 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-03-00184-CR

Doris Williams,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the County Court at Law No. 2

McLennan County, Texas

Trial Court No. 2002-1728

DISSENTING Opinion

      I respectfully dissent.  We should overrule Williams’s factual-sufficiency issue.

      “In a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if ‘proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.’  In conducting such a review, we consider all of the evidence weighed by the jury, comparing the evidence which tends to prove the existence of the elemental fact in dispute to the evidence which tends to disprove it.”  Vodochodsky v. State, 158 S.W.3d 502, 510 (Tex. Crim. App. 2005) (quoting Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)) (internal footnote omitted). “[W]e set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met.”  Prible v. State, No. AP-74,487; 2005 Tex. Crim. App. LEXIS 110, at *16 (Tex. Crim. App. Jan. 26, 2005), pet. for cert. filed, http://‌www.supremecourtus.gov/‌docket/05‑5773‌.htm (U.S. July 12, 2005) (No. 05-5773). “A decision is not manifestly unjust merely because the jury resolved conflicting views of the evidence in favor of the State.”  Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997).

      I note that the standard for what constitutes detention for purposes of Texas Penal Code Section 38.02 need not necessarily be the same as the constitutional standard.  See, e.g., Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 645 n.4 (Tex. 1995) (employer’s restriction of employee’s freedom of movement “could constitute a willful detention where the employer also uses physical force or threatens the employee’s person, reputation, or property”); Tex. Penal Code Ann. § 38.02 (Vernon Supp. 2004-2005).  However, courts have generally analyzed the issue of detention under the statute in terms of the United States and Texas Constitutions.  E.g., Domingo v. State, 82 S.W.3d 617, 620-21 (Tex. App.—Amarillo 2002, no pet.); Quick v. State, 999 S.W.2d 79, 80 (Tex. App.—Houston [14th Dist.] 1999, no pet.). “The Fourth Amendment applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest.”  Maryland v. Wilson, 519 U.S. 408, 420 n.8 (1997) (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975)); see U.S. Const. amend. IV; see also Tex. Const. art. I, § 9; Johnson v. State, 912 S.W.2d 227, 232-35 (Tex. Crim. App. 1995).  “[A] person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.”  United States v. Mendenhall, 446 U.S. 544, 554 (1980); accord Roy v. State, 90 S.W.3d 720, 723 (Tex. Crim. App. 2002).  “[T]he subjective intention of the” officer “is irrelevant except insofar as that may have been conveyed to the” suspect.  Mendenhall at 554 n.6; accord Anderson v. State, 932 S.W.2d 502, 505 (Tex. Crim. App. 1996).  “Only if the officer conveyed a message that compliance was required has a consensual encounter become a detention.”  Hunter v. State, 955 S.W.2d 102, 106 (Tex. Crim. App. 1997) (emphasis in orig.). “[T]he appropriate inquiry is whether a reasonable person would feel free to decline the officers.” Florida v. Bostick, 501 U.S. 429, 436 (1991); accord United States v. Drayton, 536 U.S. 194, 201-202 (2002); Roy at 723.  “The proper inquiry necessitates a consideration of ‘all the circumstances surrounding the encounter.’”  Drayton at 201 (quoting Bostick at 439).   

      The officer got out of his patrol car, in uniform, approached Williams, told her that he believed there was a warrant for her arrest and that he needed to confirm her identity, and asked her for her name.  Williams did not leave while the officer attempted to confirm the warrant and Williams’s identity.  Williams knew that there was a warrant for her arrest.  On this evidence, it was not wrong or unjust for the jury to believe that a reasonable person in Williams’s position would not have felt free to leave.  Williams points to no contrary evidence.

      We should overrule Williams’s factual-sufficiency issue and reach her other issues.  Because the majority does not do so, I respectfully dissent.

TOM GRAY

Chief Justice

Dissenting opinion delivered and filed September 21, 2005

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