Opinion
NO. 02-16-00450-CR
08-10-2017
SEAN MCCANN APPELLANT v. THE STATE OF TEXAS STATE
FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. F15-1641-367 MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
A jury convicted Sean McCann of evading arrest or detention. He pleaded true to two enhancement paragraphs, and the jury sentenced him to 20 years in prison. The court denied McCann's motion for new trial, and now he appeals this denial and the judgment, arguing evidentiary insufficiency and a disproportionate sentence. We affirm.
Background
Jimmy Swindle was driving on Corporate Drive in Lewisville, Texas, when he saw a green SUV behind him abruptly swerve and crash into a parked car. Swindle made a U-turn and called 9-1-1, but by the time he got to the crash, the SUV's driver was gone. Hugh Booker, who owned the parked car, was inside his home on Corporate Drive at the time and testified that his son contemporaneously alerted him about the wreck. Booker walked outside his home to investigate and saw a man standing next to the green SUV. When the man ran off, Booker chased him but lost him at a nearby Budget Suites hotel. Booker then went back to the scene of the accident.
Shortly after, the police detained McCann near the Budget Suites and brought Swindle (but not Booker) to identify him. When Swindle was unable to do so, the police allowed McCann to leave, and he returned to Corporate Drive on foot. While McCann was still a good distance away from the wreck, Booker recognized him as the man he had chased and told this to Officer Anderson Rock. Officer Rock yelled, waved, and pointed to officers who were directing traffic near the approaching McCann, in order to have them detain him. Before the officers realized what Officer Rock was trying to communicate, McCann began to flee the scene. Officer Rock, with his emergency lights on, drove toward McCann, but McCann climbed a roughly seven-foot brick wall along the sidewalk and vaulted into a neighboring back yard.
In addition to competing radio traffic and roadway noise, Officer Rock faced the added difficulty of having only one vocal cord due to a past medical condition.
Officer Rock thought that McCann claimed to have gone over the wall as a shortcut or that he knew someone who lived in the area. McCann's arrest video shows him saying that he went over the wall because it was a "better way."
When the police ultimately detained McCann in the neighborhood on the other side of the wall, he gave them conflicting names and birth dates. Booker then identified McCann as the man he had chased. The police later learned McCann's true identity after taking him to the police station.
Discussion
I. Insufficient Evidence
At trial, the defense argued that McCann was unaware that the police were trying to detain him because his back was to them while he was running and because they never made a verbal command for him to stop. On appeal McCann argues that the evidence was insufficient to show that he knew the officers were attempting to arrest him and that the trial court thus erred in denying his motion for instructed verdict and his motion for new trial on this issue.
A. Standard of Review
An appellant who challenges the denial of a motion for instructed verdict is actually challenging the sufficiency of the evidence. Bleil v. State, 496 S.W.3d 194, 201 (Tex. App.—Fort Worth 2016, pet. ref'd). In our due-process review of evidentiary sufficiency to support a conviction, we view all the evidence in the light most favorable to the verdict to determine whether any rational factfinder could have found the crime's essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). This standard gives full play to the factfinder's responsibility 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, 99 S. Ct. at 2789; Jenkins, 493 S.W.3d at 599.
The factfinder alone judges the weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Blea v. State, 483 S.W.3d 29, 33 (Tex. Crim. App. 2016). Thus, when performing an evidentiary-sufficiency review, we may not re-evaluate the evidence's weight and the witnesses' credibility and then substitute our judgment for that of the factfinder. See Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we determine whether the necessary inferences are reasonable based on the cumulative force of the evidence when viewed in the light most favorable to the verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied, 136 S. Ct. 198 (2015). We must presume that the factfinder resolved any conflicting inferences in favor of the verdict, and we must defer to that resolution. Id. at 448-49; see Blea, 483 S.W.3d at 33.
We review a trial court's ruling denying a defendant's motion for new trial under an abuse-of-discretion standard of review. Ryder v. State, 514 S.W.3d 391, 405 (Tex. App.—Amarillo 2017, pet. ref'd). At a motion-for-new-trial hearing, the trial court is the factfinder and the sole judge of the witnesses' credibility. Id. A trial court abuses its discretion only when no reasonable view of the record could support its ruling. Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006); Cook v. State, No. 05-15-00526-CR, 2016 WL 3541597, at *2 (Tex. App.—Dallas June 21, 2016, no pet.) (mem. op., not designated for publication).
B. Analysis
A person commits the offense of evading arrest or detention if (1) he intentionally flees (2) from a person (3) he knows is a peace officer, (4) who is lawfully attempting to (5) arrest or detain the person. Tex. Pen. Code Ann. § 38.04 (West 2016).
In examining intent, an actor's mental state may be inferred from his actions during and after the incident. Parks v. State, Nos. 02-13-00570-CR, 02-13-00571-CR, 2014 WL 4105294, at *2 (Tex. App.—Fort Worth Aug. 21, 2014, no pet.) (mem. op., not designated for publication) (citing Griego v. State, 345 S.W.3d 742, 753 (Tex. App.—Amarillo 2011, no pet.)). From his earlier conversation with the police near Budget Suites, McCann knew they were looking for someone of his description. Later, on Corporate Drive, McCann was walking toward the police, but after Officer Rock yelled, pointed, and motioned toward him, McCann suddenly changed direction and ran. Officer Rock testified that McCann saw his attempts to alert the other officers before McCann turned to leave. His pace quickened from a walk to a run, but only after the police showed interest in him. McCann's actions of running away from the police and scaling a seven-foot wall to leave a public sidewalk allegedly to take a shortcut through a stranger's backyard corroborate McCann's intent to avoid arrest. After running from the police, McCann was detained at gunpoint but proceeded to lie to the police about his identity.
A reasonable jury could infer that McCann was aware that the police were looking for someone matching his description; saw the police officer's actions before turning to run; did not want the police to know his identity; and took actions to make himself less accessible to the police.
Viewed in the light most favorable to the verdict, the jury could reasonably conclude from this evidence that McCann was attempting to evade arrest or detention. The trial court did not err by denying McCann's motion for instructed verdict and motion for new trial. See Jenkins, 493 S.W.3d at 599; Ryder, 514 S.W.3d at 405; Bleil, 496 S.W.3d at 201. We overrule McCann's first issue.
II. Disproportionate Sentence
McCann pleaded true to an enhancement paragraph for a prior DWI conviction and another evading-arrest conviction. These prior convictions made his present conviction a second-degree felony, and his 20-year sentence was within the statutory range for such a felony. McCann argues, though, that this sentence was disproportionate to the crime. Because he properly preserved this issue at the post-trial hearing, we consider its merits.
A. Standard of Review
Proportionality of punishment is embodied in the Eighth Amendment's ban on cruel and unusual punishment and requires that the punishment fit the offense. U.S. Const. amend VIII. Generally, a punishment that is within the statutory range is not excessive, cruel, or unusual under the Eighth Amendment and will not be disturbed on appeal. State v. Simpson, 488 S.W.3d 318, 323 (Tex. Crim. App. 2016) (citing Ex parte Chavez, 213 S.W.3d 320, 323-24 (Tex. Crim. App. 2006)); Davis v. State, No. 02-15-00183-CR, 2016 WL 3452786, at *3 (Tex. App.—Fort Worth Oct. 12, 2016, pet. ref'd) (mem. op., not designated for publication).
To determine whether a sentence is grossly disproportionate for a particular crime, the court must examine (1) the sentence's severity in light of the harm caused or threatened to the victim, (2) the offender's culpability, and (3) the offender's prior adjudicated and unadjudicated offenses. Graham v. Florida, 560 U.S. 48, 60, 130 S. Ct. 2011, 2021 (2010); see also McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.), cert. denied, 506 U.S. 849 (1992); Simpson, 488 S.W.3d at 323; Moore v. State, 54 S.W.3d 529, 542 (Tex. App.—Fort Worth 2001, pet. ref'd). In those rare times when this threshold is met and gross disproportionality is determined, the court must then compare the defendant's sentence with sentences given to other defendants in the same jurisdiction and with sentences imposed for the same crime in other jurisdictions. Graham, 560 U.S. at 60, 130 S. Ct. at 2021; Simpson, 488 S.W.3d at 323; Moore, 54 S.W.3d at 542.
B. Analysis
Only twice has the United States Supreme Court held an adult's noncapital sentence to be constitutionally disproportionate. See Solem v. Helm, 463 U.S. 277, 303, 103 S. Ct. 3001, 3016-17 (1983) (holding that, even with prior convictions, life in prison without parole was grossly disproportionate to conviction for uttering no-account check for $100); Weems v. United States, 217 U.S. 349, 357-82 30 S. Ct. 544, 545-55 (1910) (holding that 15 years in a prison camp was grossly disproportionate to conviction of falsifying a public record). In a more recent plurality decision, the Court weighed a petitioner's history of recidivism and held that an enhanced sentence of 25 years for stealing three golf clubs was not grossly disproportionate. Ewing v. California, 538 U.S. 11, 29-30, 123 S. Ct. 1179, 1189-90 (2003) (plurality opinion). The fact that the crime was ordinarily just a misdemeanor "is of no moment, for it remains a felony unless the trial court imposes a misdemeanor sentence." Id. at 12, 123 S. Ct. at 1181; see also Rummel v. Estelle, 445 U.S. 263, 281, 284, 100 S.Ct. 1133, 1143-44 (1980) (holding that life in prison for obtaining $120.75 by false pretenses was not grossly disproportionate considering that petitioner had two prior felony offenses and would have the possibility of parole).
The Rummel Court discussed the importance and general constitutionality of recidivism statutes. 445 U.S. at 276, 100 S. Ct. at 1140. Texas's interest in the stiffer sentence was not merely in punishing Rummel's actions but in addressing the actions of people "who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society" as established by state law. Id. Because Rummel had twice been imprisoned for felonies before committing the one that earned him a life sentence, "Texas was entitled to place upon Rummel the onus of one who is simply unable to bring his conduct" within the norms established by state law. Id. at 284, 100 S. Ct. at 1144.
Here, McCann has shown that he too has been unable to conform his conduct to established state law. In 2010, McCann was sentenced to five years in prison for DWI and 60 days in jail for resisting arrest. In 2012, he was sentenced to 60 days in jail for assault. In October 2014, he was sentenced to two years in prison for evading officers. McCann committed his present offense on May 30, 2015. McCann had five convictions in five years.
Although he was not sentenced to life, McCann's complained-of sentence is similar to that in Rummel because he has the possibility of parole: "Except as provided by Section 508.146, any other inmate is eligible for release on parole when the inmate's actual calendar time served plus good conduct time equals one-fourth of the sentence imposed or 15 years, whichever is less." Tex. Gov't Code Ann. § 508.145(f) (West Supp. 2016). Like Rummel, McCann's prior sentences included two felonies before the present felony conviction.
Although McCann's evading the police did not directly harm others, "the presence or absence of violence does not always affect the strength of society's interest in deterring a particular crime or in punishing a particular criminal." Rummel, 445 U.S. at 275, 100 S. Ct. at 1140. After weighing McCann's culpability and his history of recidivism, we do not find McCann's 20-year sentence to be grossly disproportionate. Id. at 265, 100 S. Ct. at 1134; see Graham, 560 U.S. at 60, 130 S. Ct. at 2022. Because McCann's sentence did not meet the grossly-disproportionate threshold, we do not examine his comparative-sentencing evidence. See Graham, 560 U.S. at 60, 130 S. Ct. at 2022; Simpson, 488 S.W.3d at 323. We overrule his second issue.
Conclusion
Having overruled both of McCann's issues, we affirm the trial court's judgment.
/s/ Elizabeth Kerr
ELIZABETH KERR
JUSTICE PANEL: WALKER, KERR, and PITTMAN, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: August 10, 2017