Amber Dionne Fitch v. State

Opinion issued November 19, 2019

In The

Court of Appeals

For The

First District of Texas

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NO. 01-18-00682-CR

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AMBER DIONNE FITCH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 10th District Court

Galveston County, Texas

Trial Court Case No. 17CR0471

MEMORANDUM OPINION

A jury found Amber Dionne Fitch guilty of evading detention with a vehicle,

a third-degree felony. See TEX. PENAL CODE §§ 38.04(a), 38.04(b)(2)(a). The jury

assessed punishment at two years’ imprisonment but recommended deferring the

punishment while Fitch served community supervision. The judge followed the

recommendation and placed Fitch under community supervision for two years. On

appeal, she argues that the evidence was insufficient to support her conviction. We

affirm.

Background

Fitch was indicted for evading detention after a brief police encounter in

Galveston County. At trial, the arresting officer testified that he was on routine

patrol in Texas City when he observed a car driving at about 45 miles per hour in a

30 mile per hour zone. He drove behind the car, ran the license plate on the vehicle

through his in-car computer system, and noticed that the owner had a suspended

driver’s license and no automobile insurance. The car turned abruptly, and the

officer lost sight for a moment. When the officer watched it drive through a stop

sign without stopping and then turn quickly, he activated his emergency lights. The

driver turned into an alleyway and accelerated, and the officer turned on his siren.

At the end of the alley, the driver turned onto another block and stopped. The

officer arrested Fitch, who was driving the car. Fitch told him that she was on the

phone with her daughter and did not notice his lights or hear the siren. The officer

explained to the jury that Fitch’s initial violation was running a stop sign. Then,

she failed to signal a turn within 100 feet, and she had a suspended driver’s license

and no proof of insurance. The jury also heard an audio recording of the officer’s

communications with dispatch. In the recording, the jury could hear the officer

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narrating his location and details about the car he was following and activating his

siren.

Fitch testified that on the night of the arrest, she was driving home with her

daughter. She testified that the officer drove behind her in the alley with no lights

on, including no headlights. When she was about a half block from her house, the

officer turned on his lights but not his siren, and she became aware that there was a

police officer behind her. There was no safe place to pull over, so she drove to her

house and stopped. She testified that she did not run a stop sign, as the officer had

suggested, because there was no stop sign at the intersection.

Fitch’s daughter testified that her mother picked her up from work and drove

home along their typical route. When they were in an alley, a car pulled up behind

them. She realized it was a police car when it turned on its lights at the end of the

alley. Her mother continued driving, making two more turns, until they stopped in

front of their apartment. She could not remember their speed, but testified that they

were not “flying down the street.”

The jury found Fitch guilty and assessed punishment at two years’

imprisonment, recommending that adjudication be deferred. The judge followed

the jury’s recommendation and deferred adjudication, placing Fitch on community

supervision for two years.

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Sufficiency of the Evidence

Fitch contends that the evidence is legally insufficient to support a

conviction for evading detention. She argues that the evidence shows that she did

not realize that the driver behind her was a police officer attempting to effectuate a

traffic stop, and therefore she did not intentionally evade detention.

A. Standard of Review

When reviewing the sufficiency of the evidence, we consider all of the

evidence in the light most favorable to the verdict to determine whether, based on

that evidence and the reasonable inferences therefrom, a jury was rationally

justified in finding guilt beyond a reasonable doubt. Merritt v. State, 368 S.W.3d

516, 525 (Tex. Crim. App. 2012) (citing Jackson v. Virginia, 443 U.S. 307, 318–

19) (1979)). “The jury is the sole judge of credibility and weight to be attached to

the testimony of witnesses.” Id. “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). A reviewing court determines whether a jury’s inferences are

reasonable “based upon the combined and cumulative force of all the evidence

when viewed in the light most favorable to the verdict.” Id. at 17. We defer to the

jury’s resolution of conflicts in the evidence. Isassi v. State, 330 S.W.3d 633, 638

(Tex. Crim. App. 2010).

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Section 38.04 of the Texas Penal Code criminalizes the act of intentionally

fleeing from a person the actor knows is a peace officer attempting to lawfully

arrest or detain her. TEX. PENAL CODE § 38.04. A person commits the offense “only

if [she] knows a police officer is attempting to arrest [her] but nevertheless refuses

to yield to a police show of authority.” Redwine v. State, 305 S.W.3d 360, 362

(Tex. App.—Houston [14th Dist.] 2010, pet. ref’d); see also Hobyl v. State, 152

S.W.3d 624, 627 (Tex. App.—Houston [1st Dist.] 2004, pet. dism’d) (“[T]he

accused must know that the person from whom [she] flees is a peace officer

attempting to arrest or detain [her].”). “‘Fleeing’ is anything less than prompt

compliance with an officer’s direction to stop.” Horne v. State, 228 S.W.3d 442,

446 (Tex. App.—Texarkana 2007, no pet.).

“A person acts intentionally or with intent, with respect to the nature of [her]

conduct or to a result of [her] conduct when it is [her] conscious objective or desire

to engage in the conduct or cause the result.” TEX. PENAL CODE § 6.03. Criminal

intent may be inferred from the defendant’s conduct and the surrounding

circumstances. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004).

Courts may consider the speed, distance, and duration of a pursuit in determining

whether a defendant intentionally fled. See Griego v. State, 345 S.W.3d 742, 751

(Tex. App.—Amarillo 2011, no pet.). “[A]nything less than prompt compliance

with an officer’s direction to stop” can constitute “an attempt to evade arrest or

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detention.” Horne, 228 S.W.3d at 446; see Lopez v. State, 415 S.W.3d 495, 497

(Tex. App.—San Antonio 2013, no pet.). Intent is a question of fact for the jury.

Brown v. State, 122 S.W.3d 794, 800 (Tex. Crim. App. 2003).

B. Analysis

Here, the issue is whether the jury heard sufficient evidence from which it

could reasonably infer beyond a reasonable doubt that Fitch knew a police officer

was attempting to detain her and yet continued driving. Fitch argues that the

evidence does not demonstrate that she intended to evade arrest because her

testimony and her daughter’s testimony conflicted with the officer’s testimony

about the timeline of events.

First, the officer testified that Fitch drove through a stop sign without

stopping, but Fitch and her daughter each testified that there was no stop sign at the

intersection. Fitch claimed that the officer was lying to protect the police

department.

Second, the officer testified that he activated his lights after Fitch drove

through a stop sign. He followed her, turning on his siren as they entered an alley.

But Fitch testified that initially when the officer pulled up behind her in the alley,

his car had no lights on at all, including headlights. According to Fitch, the officer

turned on his emergency lights when they were at the end of the alley. Fitch’s

daughter also testified that the officer activated his lights as they were at the end of

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the alley. She admitted that after the lights came on, her mother continued driving

and made two more turns to arrive at their apartment.

As to the existence of a stop sign and whether the officer had lights on at a

particular point in time, the jury is the sole judge of the weight and credibility to be

attached to witness testimony. See Merritt, 368 S.W.3d at 525. When the record

supports conflicting inferences, we presume that the jury resolved the conflicts in

favor of the verdict and defer to that determination. Id. A reviewing court may not

reevaluate the weight and credibility of the evidence in the record, and thereby

substitute our own judgment for that of the factfinder. Williams v. State, 235

S.W.3d 742, 750 (Tex. Crim. App. 2007). The jury was free to disbelieve Fitch and

her daughter and credit the officer’s testimony about the stop sign. See Merritt, 368

S.W.3d at 525.

Fitch argues that even if the officer activated his lights, that does not prove

that she knew that he wanted to pull her over. Proof that an officer in a vehicle is

attempting to detain a person generally consists of the officer displaying authority

by the use of emergency lights and siren. Duvall v. State, 367 S.W.3d 509, 513

(Tex. App.—Texarkana 2012, pet. ref’d); see also Lopez, 415 S.W.3d at 497 (fact

finder could reasonably infer defendant was aware law enforcement officers were

attempting to detain him, but he intended to flee, where pursuing officers had their

lights and sirens activated while following defendant). Though they disagree about

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when it happened, Fitch, her daughter, and the officer each testified that at some

point the officer activated his lights and siren, and they each testified that Fitch

continued driving after the siren and lights were activated. See Coggin v. State, No.

03-04-00585-CR, 2006 WL 1292581, at *2 (Tex. App.—Austin May 12, 2006, no

pet.) (mem. op., not designated for publication) (evidence sufficient to find that

defendant intentionally fled where defendant, after passing law enforcement

officer’s patrol car, turned off his car’s lights and drove home at a high rate of

speed); Luna v. State, No. 04-05-00518-CR, 2006 WL 1814308, at *2–3 (Tex.

App.—San Antonio July 5, 2006, no pet.) (mem. op., not designated for

publication ) (evidence sufficient to find defendant intentionally fled where law

enforcement officer testified that, after activating his patrol car’s emergency lights,

defendant did not stop until he arrived at his place of residence).

No particular speed, distance, or duration of pursuit is required to prove the

requisite intent to evade arrest or detention in a motor vehicle. See Griego, 345

S.W.3d at 751; Reyes, 465 S.W.3d at 805–06 (evidence sufficient to find defendant

“intentionally fled in a vehicle” despite “pursuit last[ing] less than a minute”); see

also Khan v. State, No. 01-18-00327-CR, 2019 WL 346861, at *7 (Tex. App.—

Houston [1st Dist.] Jan. 29, 2019, pet. ref’d). A person who continues driving to

her own home, while being pursued by a law enforcement officer, may still possess

the intent to commit the offense of evading arrest, or detention, in a motor vehicle.

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Horne, 228 S.W.3d at 445–46 (evidence sufficient to find intent to evade arrest or

detention, where defendant did not pull over and stop for “the few minutes it took

to park his car in front of his mother’s house”); Luna, 2006 WL 1814308, at *2

(evidence sufficient to find defendant intentionally fled where law enforcement

officer testified that, after activating his patrol car’s emergency lights, defendant

only stopped when he arrived at his place of residence); Coggin, 2006 WL

1292581, at *2 (rejecting argument “that it cannot be a crime for a person to go to

his own home”).

Here, the jury could reasonably infer that Fitch was aware the officer was

attempting to detain her and that she continued to drive rather than yielding to his

authority, demonstrating the intent to evade detention. See Lopez v. State, 415

S.W.3d 495, 497 (Tex. App.—San Antonio 2013, no pet.). We overrule Fitch’s

sole issue.

Conclusion

We affirm the judgment of the trial court.

Peter Kelly

Justice

Panel consists of Justices Kelly, Hightower, and Countiss.

Do not publish. TEX. R. APP. P. 47.2(b).

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