Opinion
No. 10-17-00140-CR
12-27-2017
MARCUS ANTIONE HERVEY, Appellant v. THE STATE OF TEXAS, Appellee
From the County Court Navarro County, Texas
Trial Court No. 73223
MEMORANDUM OPINION
Marcus Antoine Hervey was convicted of Evading Arrest or Detention and sentenced to 365 days in jail. See TEX. PENAL CODE ANN. § 38.04(a) (West 2016). Because the evidence is insufficient to support Hervey's conviction, the trial court's judgment is reversed, and a judgment of acquittal is rendered.
Detective Kenneth Dunagan and another officer with the Corsicana Police Department approached a high crime area in an unmarked vehicle and wearing plain clothes. They spotted Hervey walk out of a yard and into the road to briefly speak with an occupant of a vehicle that had stopped in the roadway. Hervey walked back to the yard, and Dunagan yelled to him, "Come here, man!" Hervey ran. Hervey was captured later after a uniformed officer told Hervey to get on the ground.
In his sole issue, Hervey contends the evidence is insufficient to support his conviction because the State failed to prove two elements of the offense: that Hervey was lawfully detained and that Hervey knew a peace officer was attempting to detain him. Because it is dispositive of the appeal, we only discuss whether the evidence was sufficient to prove Hervey was lawfully detained.
The Court of Criminal Appeals has expressed our standard of review of a sufficiency issue as follows:
In determining whether the evidence is legally sufficient to support a conviction, a reviewing court must consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319. "Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction." Hooper, 214 S.W.3d at 13.Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).
The Court of Criminal Appeals has also explained that our review of "all of the evidence" includes evidence that was properly and improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting inferences, we must presume that the factfinder resolved the conflicts in favor of the prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307, 326, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Further, direct and circumstantial evidence are treated equally: "Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is well established that the factfinder is entitled to judge the credibility of witnesses and can choose to believe all, some, or none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
A person is guilty of evading arrest if (1) the person, (2) intentionally flees, (3) from a person he knows is a peace officer, (4) attempting lawfully to arrest or detain him. See TEX. PENAL CODE ANN. § 38.04(a) (West 2016). The State bears the burden to prove the lawfulness of the attempted detention as an element of the offense. Guillory v. State, 99 S.W.3d 735, 741 (Tex. App.—Houston [1st Dist.] 2003, pet. ref'd). Under the Fourth Amendment, a warrantless detention of the person that amounts to less than a full-blown custodial arrest must be justified by a reasonable suspicion. Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). A police officer has reasonable suspicion to detain a person if he has specific, articulable facts that, combined with rational inferences from those facts, would lead him reasonably to conclude that the person detained is, has been, or soon will be engaged in criminal activity. York v. State, 342 S.W.3d 528, 536 (Tex. Crim. App. 2011). Stated otherwise, those specific, articulable facts must show unusual activity, some evidence that connects the detained individual to the unusual activity, and some indication that the unusual activity is related to crime. Derichsweiler, 348 S.W.3d at 916. This standard is an objective one that disregards the actual subjective intent of the arresting officer and looks, instead, to whether there was an objectively justifiable basis for the detention. Derichsweiler v. State, 348 S.W.3d at 914. It also looks to the totality of the circumstances; those circumstances may all seem innocent enough in isolation, but if they combine to reasonably suggest the imminence of criminal conduct, an investigative detention is justified. Id.
Neither time of day nor level of criminal activity in an area are suspicious in and of themselves; the two are merely factors to be considered in making a determination of reasonable suspicion. Crain v. State, 315 S.W.3d 43, 53 (Tex. Crim. App. 2010). See Gurrola v. State, 877 S.W.2d 300, 303 (Tex. Crim. App. 1994) (high crime area); Amorella v. State, 554 S.W.2d 700, 701 (Tex. Crim. App. 1977) (same). Further, two individuals in or around a vehicle, without more, does not amount to reasonable suspicion of criminal activity. See Richardson v. State, 494 S.W.3d 302, 306 (Tex. App.—Waco 2015, no pet.) (defendant driver approached by known prostitute was no more than a hunch of criminal activity); State v. Wofford, No. 10-15-00206-CR, 2016 Tex. App. LEXIS 3624, at *5-6 (Tex. App.—Waco Apr. 7, 2016, no pet.) (not designated for publication) (defendant passenger in car parked in front of alleged drug house only a hunch of criminal activity).
The attempted detention occurred immediately upon the command of Detective Dunagan for Hervey to "Come here, man!" upon exiting the unmarked vehicle. The facts Dunagan articulated as the reason for his attempted detention were Hervey's presence in a high-crime area, Hervey's seconds-long visit through an open window with someone in a car parked on the wrong side of the street, 18 inches away from the curb, and Hervey's clenched hand as he walked away from that car. There was no testimony as to the time of day or night this event occurred. Dunagan saw nothing transpire between Hervey and the car's occupant. Further, he had no specific information that a drug deal was occurring and had no information whether or not Hervey was a drug dealer.
Dunagan's body cam showed that the attempted detention occurred in the daylight hours. The video did not, however, show Hervey or the visit between Hervey and the occupant or occupants of the vehicle.
Based on the totality of the circumstances, the information Dunagan had amounted only to a hunch, rather than a reasonable suspicion, that Hervey may have been involved in criminal activity at the time Dunagan attempted to detain Hervey. Thus, considering the evidence in the light most favorable to the verdict, a rational trier of fact could not have found that the State proved the essential element of an attempted lawful detention.
Accordingly, Hervey's sole issue is sustained. We reverse the trial court's judgment and render a judgment of acquittal.
TOM GRAY
Chief Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins
Reversed and rendered
Opinion delivered and filed December 27, 2017
Do not publish
[CR25]