Opinion issued November 21, 2012

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-11-00864-CR

———————————

PEDRO ANGEL GUTIERREZ, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 176th District Court

Harris County, Texas

Trial Court Case No. 1272197

MEMORANDUM OPINION

After appellant waived his right to a jury, the trial court found appellant 

Pedro Angel Gutierrez, Jr. guilty of the third-degree felony offense of evading 

arrest or detention using a vehicle and having been previously convicted of 
2

evading detention.1 After finding allegations in two enhancement paragraphs to be 

true, the trial court sentenced appellant, as a habitual felony offender, to 25 years in 

prison.2 

Appellant raises three issues on appeal. He contends that (1) the evidence 

was insufficient to prove the allegations in the State’s enhancement paragraphs; (2) 

the trial court erred by finding that the State had not engaged in prosecutorial 

vindictiveness; and (3) the evidence is insufficient to support his conviction for 

evading arrest. 

We affirm. 

Background Summary

At 1:55 in the morning on July 28, 2010, Deputy M. Gustaffson of the 

Harris County Sherriff’s Office was on patrol in his marked police car when he 

saw appellant commit the traffic offense of failing to signal a turn. Deputy 

Gustaffson decided to stop appellant based on that traffic offense. 

The deputy was 200 feet from appellant when he saw the offense. He had to 

turn his vehicle around to effectuate the stop. As he was turning his vehicle 

 

1

See Act of May 27, 2009, 81st Leg., R.S., ch. 1400, § 4, 2009 Tex. Gen. Laws 

4385, 4385–86 amended (current version TEX. PEN. CODE ANN. § 38.04 (Vernon 

Supp. 2012). Section 38.04(b) was amended in 2011. The amendment is not 

applicable here because the offense occurred prior to the date the amendments 

became effective. 

2

See PEN. CODE ANN. § 12.42(d) (Vernon 2011).
3

around, Deputy Gustaffson saw appellant’s vehicle rapidly increase its speed and 

turn onto another street. Deputy Gustaffson did not initially activate the 

emergency lights and siren on his vehicle. He later testified at trial that he thought 

that appellant was already fleeing from him, and he did not want to “spook” 

appellant “into running any quicker by turning on my lights.” Deputy Gustaffson 

wanted to catch up to appellant’s vehicle. He stated that he needed to get 

appellant’s license plate number before he “initiated the actual pursuit.” 

As he attempted to get close to appellant’s vehicle, Deputy Gustaffson 

followed appellant as he turned onto to a series of streets. Appellant continued to 

speed as he drove. Deputy Gustaffson decided to activate the emergency lights 

and siren on his patrol car because it was apparent to him the appellant was fleeing 

from him. At that point, Deputy Gustaffson called into dispatch that he was 

engaging in a pursuit of a vehicle. 

After the deputy activated the lights and siren on his patrol car, appellant 

continued to speed, driving between 50 and 70 miles per hour down the street. 

Appellant ran through two red lights without stopping at an intersection. Appellant 

drove on and made a turn at a red light without stopping. Appellant continued 

driving at approximately 70 miles per hour through a residential neighborhood. 

Appellant ran through another red light without stopping. At the next intersection, 

appellant did not stop at a stop sign. He was traveling over 70 miles per hour as he 
4

went through the intersection. Appellant continued to another intersection, 

disregarded the stop sign, and made a right turn. The lights and siren on the patrol 

car had remained on since Deputy Gustaffson had activated them. Appellant then 

made a turn at an intersection, again disregarding a stop sign. 

Around this time, Deputy Gustaffson saw appellant turn off his headlights 

and continued to drive. Deputy Gustaffson would testify that law enforcement call 

this being “blacked out.” 

Because he was familiar with the area, Deputy Gustaffson was able to head 

off appellant’s vehicle. Appellant ultimately stopped his vehicle. His headlights 

were still turned off.

Appellant was indicted for the offense of evading arrest or detention by 

using a motor vehicle. Because the indictment also alleged that appellant had 

previously been convicted of evading detention in February 2010, the instant 

offense was elevated to a third-degree felony.

3

The indictment also contained two 

enhancement paragraphs, alleging that appellant had been convicted in 2003 of the 

offense of burglary of a habitation and convicted in 2008 of the offense of 

possession of a controlled substance. 

 

3

See Act of May 27, 2009, 81st Leg., R.S., ch. 1400, § 4, 2009 Tex. Gen. 

Laws 4385, 4385–86 amended (current version TEX. PEN. CODE ANN.

§ 38.04 (Vernon Supp. 2012)). 
5

Appellant waived his right to a jury, and the case was tried to the bench. To 

support the primary offense, the State presented the testimony of Deputy 

Gustaffson. Appellant stipulated to the evidence showing that he had been 

previously convicted of evading detention. The trial court found appellant guilty 

of the primary offense of third-degree evading arrest or detention. 

Appellant pleaded “not true” to the two enhancement allegations in the 

indictment. The State offered the “pen packets,” with the judgments and sentences 

for the two felony offenses described in the indictments’ two enhancement 

paragraphs and finger print cards for each offense. The State presented the 

testimony of a fingerprint expert. He testified that he had recently taken 

appellant’s fingerprints. He had compared those prints with those in the pen 

packets. He had concluded that the fingerprints in the pen packets were those of 

appellant. 

The trial court found the enhancement allegations to be true. Based on these 

findings, appellant was sentenced as a habitual offender. The trial court sentenced 

him to 25 years in prison. This appeal followed. Appellant raises three issues on 

appeal. 

Sufficiency of the Evidence to Prove Primary Offense

In his third issue, appellant alleges that the evidence was insufficient to show 

that he committed the offense of evading arrest or detention. 
6

A. Standard of Review

This Court reviews sufficiency-of-the-evidence challenges applying the 

same standard of review, regardless of whether an appellant presents the challenge 

as a legal or a factual sufficiency challenge. See Ervin v. State, 331 S.W.3d 49, 

53–55 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (construing majority 

holding of Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)). This 

standard of review is the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 

319, 99 S. Ct. 2781, 2789 (1979). See id. Pursuant to this standard, evidence is 

insufficient to support a conviction if, considering all the record evidence in the 

light most favorable to the verdict, no rational fact finder could have found that 

each essential element of the charged offense was proven beyond a reasonable 

doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; In re Winship, 397 U.S. 

358, 361, 90 S. Ct. 1068, 1071 (1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. 

Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). 

We can hold evidence to be insufficient under the Jackson standard in two 

circumstances: (1) the record contains no evidence, or merely a “modicum” of 

evidence, probative of an element of the offense, or (2) the evidence conclusively 

establishes a reasonable doubt. See Jackson, 443 U.S. at 314, 318 n.11, 320, 99 S. 

Ct. at 2786, 2789 n.11, 2789; see also Laster, 275 S.W.3d at 518; Williams, 235 

S.W.3d at 750.
7

The sufficiency-of-the-evidence standard gives full play to the responsibility 

of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and 

to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443 

U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. 

App. 2007). An appellate court presumes that the fact finder resolved any conflicts 

in the evidence in favor of the verdict and defers to that resolution, provided that 

the resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. 

In viewing the record, 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. 

Clayton, 235 S.W.3d at 778. Finally, “[e]ach 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 v. 

State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

B. Law of the Offense

At the time of the commission of the instant offense, the Penal Code

provided that a person committed the offense of evading arrest or detention if he 

intentionally fled from a person he knew was a peace officer attempting lawfully to 

arrest or detain him. See Act of May 27, 2009, 81st Leg., R.S., ch. 1400, § 4, 2009 

Tex. Gen. Laws 4385, 4385–86 amended (current version TEX. PEN. CODE ANN.
8

§ 38.04 (Vernon Supp. 2012)). The offense was elevated to a third-degree felony if 

the actor used a vehicle while in flight and the actor had previously been convicted 

of the offense of evading arrest or detention. See id. The law is clear that a person 

commits the offense of evading arrest or detention only if he knows that a peace

officer is attempting to arrest or detain him, but nevertheless, refuses to yield to a 

police show of authority. See 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 he flees is a peace officer attempting to arrest or detain him.”); Brooks 

v. State, 76 S.W.3d 426, 434 (Tex. App.—Houston [14th Dist.] 2002, no pet.). 

C. Analysis

In support of his sufficiency challenge, appellant asserts that the evidence 

did not show that he knew that a peace officer was attempting to detain him. 

Appellant points out that there was no video camera in Deputy Gustaffson’s patrol 

car; thus, there was no video of the pursuit. Although there was no video evidence 

of the pursuit, Deputy Gustaffson gave detailed testimony. With the aid of maps of 

the area, Deputy Gustaffson described the point at which he activated the patrol 

car’s lights and siren, the exact route taken during the pursuit, and the manner in 

which appellant was driving. 

Appellant also asserts that, “for a major portion of the incident,” the 

emergency lights and siren on Deputy Gustaffson’s patrol car were not activated. 
9

Contrary to this assertion, Deputy Gustaffson testified that he pursued appellant 

without the lights and siren activated for approximately 45 seconds. He stated that 

he activated the emergency equipment when he called the pursuit into dispatch. 

His testimony and the police “call slip,” indicating when Deputy Gustaffson called 

the pursuit into dispatch, and when the pursuit ended, indicate that he pursued 

appellant with his emergency equipment activated for over two-and-one-half 

minutes. 

Appellant further contends that the record does not indicate that appellant 

heard the siren on Deputy Gustaffson’s patrol car once it was activated. The 

deputy testified that, after he saw appellant commit the traffic offense, he was not 

close to appellant’s vehicle. For this reason, he did not initially activate the lights 

or siren on his patrol car. The deputy testified that he thought doing so might 

cause appellant to flee. The deputy stated that he was attempting to catch up to 

appellant when he formed the belief that appellant already knew he was pursuing

him. At that point, the deputy activated his emergency equipment. 

Although the record does not reflect how close Deputy Gustaffson 

ultimately got to appellant’s vehicle, the evidence shows that, after the deputy 

activated his emergency equipment, appellant ran through four red lights and three 

stop signs traveling at times in access of 70 miles per hour. The evidence also 

showed that, after the deputy had activated his emergency equipment, appellant 
10

turned off his headlights and continued to drive until he was headed off and 

stopped by the deputy. From this evidence, the trial court, as the fact finder, could 

have reasonably inferred that, from the time Deputy Gustaffson activated his 

emergency equipment, appellant knew that the deputy was a peace officer 

attempting lawfully to detain him. 

Viewing all the evidence, direct and circumstantial, in the light most 

favorable to the jury verdict, we conclude that a rational fact finder could have 

found, beyond a reasonable doubt, all of the essential elements of the charged 

offense of evading detention. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. 

More precisely, the trial court could have found, beyond a reasonable doubt, that 

appellant intentionally fled from a person he knew was a peace officer attempting 

lawfully to detain him. We hold that the evidence is sufficient to support the 

judgment of conviction.

We overrule appellant’s third issue.

Sufficiency of the Evidence Regarding Enhancement Allegations

In his first issue, appellant contends that the evidence was not sufficient to 

support the trial court’s finding that the State’s two enhancement allegations were 

true. Specifically, appellant contends that the State failed to show that he is the 

same person previously convicted of the offenses of burglary of a habitation and 
11

possession of a controlled substance, as alleged in the enhancement paragraphs of 

the indictment. 

To establish a prior conviction for sentence enhancement purposes, the State 

must prove beyond a reasonable doubt that the prior conviction exists and the 

defendant is linked to that conviction. Flowers v. State, 220 S.W.3d 919, 921 

(Tex. Crim. App. 2007); Beck v. State, 719 S.W.2d 205, 210 (Tex. Crim. App.

1986) (“It is incumbent on the State to go forward and show by independent 

evidence that the defendant is the person so previously convicted.”). No specific 

document or type of proof is required. Flowers, 220 S.W.3d at 921. 

At trial, the State offered the testimony of Harris County Sheriff’s Office 

Crime Scene Investigator Deputy G. Clayton. He testified that his job duties 

include fingerprint identification. Through Deputy Clayton, the State introduced 

Exhibit 12, a document containing the inked right and left thumb print of appellant. 

The deputy stated that he had taken the prints from appellant. 

The State also introduced Exhibit 5, authenticated business records of the 

Texas Department of Corrections. Exhibit 5 contains pen packets pertaining to 

convictions for the offenses of burglary of a habitation and possession of a 

controlled substance. The exhibit includes a judgment of conviction and sentence 

for burglary of a habitation and a judgment of conviction and sentence for 

possession of a controlled substance. Each judgment bears appellant’s name, 
12

“Pedro Angel Gutierrez, Jr.” Each judgment also has appellant’s thumb print on 

the last page. The thumb print on the judgment for the offense of burglary of a 

habitation is very faint. 

The pen packets also contain photographs of Pedro Angel Gutierrez, Jr and a 

finger print card for each of the two enhancement offenses: burglary of a habitation 

and a possession of a controlled substance. In addition to identifying the offense 

and the sentence received for each offense, the fingerprint card contains appellant’s 

name, date of birth, sex, race, weight, height, eye color, hair color, and skin tone.

Each print card has finger prints for all five fingers, including a right and left 

thumb print. Deputy Clayton testified that he compared the finger prints in the pen 

packet with those in Exhibit 12. He stated that the fingerprints in the pen packet 

were the same as those in Exhibit 12. In other words, he matched the prints in the 

pen packets to those contained in Exhibit 12, which were established to be 

appellant’s prints.

The Court of Criminal Appeals has “consistently held that a prior conviction 

alleged for enhancement . . . may be established by certified copies of a judgment 

and a sentence and authenticated copies of the Texas Department of Corrections 

records including fingerprints, supported by expert testimony identifying them as 

identical with known prints of the defendant.” Beck, 719 S.W.2d at 209. Viewing 

the evidence in the light most favorable the judgment, we conclude that the 
13

evidence was sufficient to link appellant beyond a reasonable doubt to the 

convictions alleged in the two enhancement paragraphs. See id. We hold that the 

evidence was sufficient to support the trial court’s findings of true for the two 

enhancement allegations. 

We overrule appellant’s first issue. 

Prosecutorial Vindictiveness

In his second issue, appellant asserts that “the trial court erred in not finding 

that the State engaged in prosecutorial vindictiveness.” 

Appellant filed a motion to quash the enhancement allegations in the 

indictment. To support the motion, he argued, in part, that the State had engaged 

in prosecutorial vindictiveness. Appellant explained that, on the day following his 

arrest for the instant offense, the State had presented a criminal complaint that did 

not include the two enhancement paragraphs. At that time, the State offered to 

recommend that appellant receive a two-year prison sentence in return for a guilty 

plea. Appellant rejected the offer. In his motion to quash, appellant explained that 

he told the State that he was rejecting the offer because “he had been unable to 

contact his family.” Appellant wrote, “At the following court appearance, after 

indictment and inclusion of the two enhancement paragraphs, the State offered 25 

years. And at all times since the State has offered no less than ‘double digits.’”
14

Before trial, the trial court heard appellant’s motion to quash. Appellant 

argued that the State had engaged in prosecutorial vindictiveness because it had 

increased the minimum amount of punishment that it would accept to enter into a 

plea bargain. The record from the hearing shows that appellant was represented by 

counsel the day after his arrest, when he rejected the State’s offer of a two-year 

sentence. It also shows that appellant later counter-offered with a six-year 

sentence. The State rejected the counter-offer, indicating that it would not accept 

less than a “double digit” sentence. 

At the hearing, the prosecutor acknowledged that appellant had been 

cooperative and had not committed any additional criminal offenses since his 

arrest. The prosecutor explained why the minimum sentence that the State would 

accept had increased. He stated that the initial two-year offer had been made 

because the case “came out of Intake improperly.” The prosecutor explained that 

State’s current offer of a 25-year sentence was based on appellant’s habitual 

offender status and on his criminal record showing 13 past criminal convictions. 

The prosecutor also cited “the dangerous nature of the pursuit” in this case. 

Appellant testified at the hearing. He stated that he was willing to accept a 

six year sentence in exchange for pleading guilty. He explained that he had 

rejected the State’s initial two-year offer because he wanted to speak with his wife 
15

about it. On cross-examination, appellant acknowledged that his wife was not an 

attorney. 

At the end of the hearing, the trial court denied appellant’s motion to quash. 

On appeal, appellant contends that the trial court erred in its ruling. He asserts, 

“[A] decision to prosecute violates due process when criminal charges are brought 

in retaliation against a Defendant for exercising his legal rights.” 

In his brief, appellant raises an argument to support his prosecutorial 

vindictiveness claim that he did not assert in the trial court. He now contends that 

the State raised the minimum sentence it would accept for a plea bargain in 

retaliation for appellant’s exercise of his right to prepare a defense. Specifically, 

appellant intimates that he did not accept the two-year offer because he needed 

time to determine whether Deputy Gustaffson’s patrol car had a dash camera, 

which could have recorded the pursuit. In other words, he needed time to 

determine whether there was an exculpatory video that might aid his defense. 

Appellant contends that, once he learned that there was no dash camera, he 

counter-offered with a six-year sentence, which was rejected. He asserts that the 

State’s refusal to accept his counteroffer, and its prosecution of him as a habitual 

offender, was done in retaliation for his seeking possible exculpatory evidence to 

aid in his defense. 
16

As mentioned, appellant did not raise this argument in the trial court to 

support his prosecutorial vindictiveness allegation. When a party asserts an 

argument on appeal that is different from his argument in the trial court, the issue

is forfeited on appeal. See Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App.

1990) (holding that a trial court objection stating one legal basis may not be used to 

support a different legal theory on appeal). Because he did not support his 

prosecutorial vindictiveness complaint in the trial court with the argument, 

appellant has waived on appeal his argument that the State retaliated against him 

for exercising his right to determine whether there was exculpatory evidence. See 

id. 

Appellant also intimates that the State was motivated to pursue him as a 

habitual offender and reject his counteroffer because he exercised his “legal right” 

to contact his wife before accepting the initial two-year offer. 

Generally, prosecutors have broad discretion to decide what charges to file 

against a criminal defendant. Neal v. State, 150 S.W.3d 169, 173 (Tex. Crim. App.

2004). For example, a prosecutor may not increase the charges against a defendant 

simply as a punishment for invoking a right, such as pursuing an appeal. Id. “To 

punish a person because he has done what the law plainly allows him to do is a due 

process violation of the most basic sort.” United States v. Goodwin, 457 U.S. 368, 

372, 102 S. Ct. 2485, 2488 (1982). A constitutional claim of prosecutorial 
17

vindictiveness may be established in either of two distinct ways: (1) proof of 

circumstances that pose a “realistic likelihood” of such misconduct sufficient to 

raise a “presumption of prosecutorial vindictiveness,” which the State must rebut 

or face dismissal of the charges; or (2) proof of “actual vindictiveness”—that is, 

direct evidence that the prosecutor’s charging decision is an unjustifiable penalty 

resulting solely from the defendant’s exercise of a protected legal right. Neal, 150 

S.W.3d at 173 (citing Goodwin, 457 U.S. 368, 380–81, 102 S. Ct. at 2492).

Both avenues to proving prosecutorial vindictiveness require the defendant 

to exercise a protected legal right. See id. Appellant intimates that consulting with 

his wife before entering into a plea agreement was a “legal right;” however, he 

provides no legal authority for this. Because appellant has not asserted that he 

exercised a protected legal right, the trial court did not err when it implicitly found

that the State had not engaged in prosecutorial vindictiveness.

We overrule appellant’s second issue. 

Conclusion

We affirm the judgment of the trial court. 

Laura Carter Higley

Justice 

Panel consists of Justices Jennings, Higley, and Sharp.

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