## In the Court of Appeals Second Appellate District of Texas at Fort Worth

___________________________ No. 02

- 19

- 00262

- CR

___________________________

On Appeal from the 30th D ist rict Court Wichita County, Texas Trial Court No. 58,250

- A

Before Kerr, Birdwell, and Bassel, JJ. Memorandum Opinion by Justice Bassel 

### L

ARRY 

### C HARLES 

### P ERRY 

### , Appellant

V



### . T H E 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION
I. Introduction Appellant Larry Charles Perry appeals his convic tion for the third

- degree felony
of evading arrest or detention using a vehicle. See Tex. Pen al Code Ann

. § 38.04(b)(2)(A). A jury convicted him of the offense. The trial court also found that
the enhancement alle gations were true and sentenced Appellan t to a term of thirty

ye a r s ’ confin e ment in the Institutional Division of the Texas Department of Criminal Justice. In a single issue, Appellant argues that the trial court erred by failing to instruct the jury on the lesser

- included misdemeanor offense o f evading arrest or detent i o n on fo o t. We conclude that Appellant failed to preserve his clai m because his argument on appeal does not comport with the argument he made to the trial court and that even if his claim had been preserved, the evidence d id not permit the jury to find that Appellant was guilty only of the offense of evading arrest or de tenti o n on fo ot. We affirm the jud gment of the trial court.
II. Factual and procedural backgroun d
A. T he pursui t of Appellant
The re c ord consist s primarily of the testimony of two Wichita Falls police
officers and a dash

- cam vid eo and its assoc iated au d io

. At approximately 9:00 p .m. on a Friday , t he t wo testifying officers w ere watching a hous e, whic h was described a s a “kn own dope sale home [] .” A wh ite SUV pulled up to the house, and the vehi cle’s3 occupant entered the house , stayed for two t o three mi nutes , and returned to his
vehicle.
A s described by the officers and depicte d in the recordin g , the officers
followed the SUV in their ma rked patrol vehicl e. The officers observed the SUV ’ s driver commit a traffic vio lation by failing to signal.
The SUV r eached a street with several commercial establish ments. The
off icers drove within a couple of car lengt hs behind the SUV and activated the patrol vehicle’s overhead lights. The SUV did not stop. The o fficers then repeatedly blew
their vehicle’s air horn for appro xi ma tely ten secon ds , aga in prompting no respon se f

r o m the SUV

. The officers then act ivated the siren. Within a few second s from the
time th at the officer s activated the siren, the vehicle turned into a resi dential area. A t
least one additio na l police car joined t he c hase. While travelling throu gh the residential neighborhood, the SUV followed a

course that on e o f the officers described as a looping figure

- eight

. There was almost
no traff ic on t he residential streets where the pursuit occurr ed

. T he pursuit of the SUV lasted approximately three minutes with speeds rangin g between twenty and forty miles per hour. T he officers w ere often within feet of the SUV and had their

ove rhead lights and siren activated for t wo and a h alf m inutes of the ti me that they

w ere behind the S UV. The SUV drove t hrough four stop signs, onl y slow ing enough
to make turns but w ithout showing any inclination to stop. During the multi

- block
pursu it, the r e were numerous places whe re Appellant could have pulled over
.4 O ne officer state d t hat d uring the pursuit , it appeared that the dri ver was throwing something from the vehicle’s window. The other officer responded to this
obs ervation by saying , “ I t looks like it, but I can’t tell.” On cross

- examinat ion, the
of ficer wh o had observed items b eing th rown out of the vehicle rei terated , “ In the
video while we were traveling south on Buchanan, you can a ctually see what we
believed [to be] some type of contraband or something being thrown out of the
window. On the v id eo and i n per son, I distinctly remember being abl e to see something flyin g through the air. ”
B. Appellant ’ s brief co mpli ance wit h the offic ers ’ commands The pursuit ended when another patrol vehicle with its overhead lights flashin g faced the SUV in the oncomin g la ne of traffic. The officers conducted what they described as a felony stop, meaning that they drew the ir weapons as they emerg ed
from their vehicle s and re peatedly yell ed at the SUV’s driver , Appe llant, to put his hands up and to stop
. Appellant st e p pe d f rom the SUV, looked back at the purs u ing officers’ vehicle, placed one hand in the air, shut the door of the vehicle with his other
hand , and the n placed that hand in the ai r. He then ste pped in front of the SUV, and

o nce out of the office rs ’ line of s ight, began to run. The se q uence of events from the
time that A ppellant opened the SUV ’ s door until he ran lasted eight seconds. A
number of officers pursued Appellant for approximately 100 to 150 feet , and the foot

c hase ended abruptly when he was T ased

.5 A p pellant im mediately began pr otes ting , “ I ain ’ t got nothing , ” and “ I ain ’ t d id nothing. ” I n his br ief, Appellant claims that at a c ertain point i n the recording , he can be heard to say , “ I didn ’ t see you. ” W e have lis tened to the video repeatedly ; the
excha nge a t the identified point consists of the officer instructing Appellant not to dig (presumab ly in his pockets ) , and Appe llant twice responding , “ I ain ’ t digging. ”
C. Appellant ’ s pleas for the officers not to seize his vehicle and hi s emphasis tha t he h ad go tten his vehicle to his residence
An office r told Appellant that he was being arrested for ev ading. Appellant again pr otested that he had not done a nything a n d that he “ ain ’ t got nothing else ” that
he wante d t o tel l the officer abou t
. Ap pella n t then a sked about his keys , and the
officer told him t hat his vehicle was b e ing seized. Appe llant began beggin g the
officers no t to seize h is vehicle

. One officer told him that was not how it worked an d
also told Appellant that he had bee n given the “ c h ance to stop and it could have all
b een avoided , but you opted to go with a felony , so we ’ re g oing to have to follow ou r protocol and s ei ze you r vehic le

. ” Appell a nt continued to plead and said , “ I st ay right
ther e. ” Appellant then gave the officer his a d dres s. The c on v er s ation with the o ffi cer s apparently continued once Appellant was place d in th e i r patrol vehicle

. Once again , Appellant pleade d , “ P lea se do n ’ t tow my

car , ” and also said , “ I ’ m parked at home

. ” The pleading continued, and Appellant
then r e em p hasized that his vehicle was “ at home. ” He th en said , “ Oh man, I ’ m sorry6 f

or r unning

. ” Appell a nt s aid t hat he ’ d “ pay more money , ” that he knew he was
wrong , and tha t h e was sorry. The jury heard Appellan t ’ s acknowledgment that he had a little weed on him

. One officer testified that after Appellant had be en T a sed , the officer had ro lled him

over and had seen a “ loose, g reen leafy substance all over his clothing

. ” App ellant also had a marijuana cigarette in the pocket of h is s hor ts.
D. Ap pellant ’ s t r i al theory Appellant ’ s trial the ory b e gan in voir di r e when h is counsel questioned jurors
about th eir nervousness when th ey suddenl y saw the light s of a pol i ce car in their rear

view mirror.
Durin g the trial , Appellant ’ s counsel laid out a theory that al i gned with the pleas that App ellant had m a de to the officers tha t his vehicle should n ot be seized
because he had made it home. Couns el ’ s e xpla nation was that App ellant did not stop because he w as look ing for a safe place to stop and that Appellant had co n cluded that
his res idenc e was th e best place to stop

. This argument was made when co unsel requested tha t the jury charge inclu de the lesser

- included of fense of evading on foot: Ju dge, I ’ m asking the Co urt to include an instruction in reference to a lesse r

- include d evading on foot. I do believe that there was a scintilla

-- enough evidence to sh ow that a p e r son c ommits an off ense if he intentionally flee s from a person he knows is a peace officer.

. . . . And es sentially I say that, Judge, because all of the el e ments for evading a re th e same except for the vehicle portion. And I believe the Sta te7 show e d me a case in refe rence to, I think, Smith V Stat e where the Court finds tha t based upon the facts in that case, you can ’ t

-- a jury couldn ’ t infer that t he indi v

idual was trying to get the car to a different location to park it because in that pa rticula r case that they ’ re talkin g about, the defendant st opped

-- never really stopp ed the car, jumped out of the window , and ran across traffic. And they said t hat the r e was no way in tha t ins tance that a jury could find that he was looking for a place to park
a n d was only fleeing when he was on foot. And I s ay that this case is distingu ished from that one be cause obviousl y it was a slow

- speed chase, he did pa rk the ca r , and then he got o ut sl owly and then ran. [Emphas is added

. ]
Th e cl a i m

— that Appellant w as not fleeing during the pursuit but wa s simply
try ing to get home

— carried forwar d in to Appel lant ’ s argument t o the jury: A person acts inten tionall y or wi th intent with respect to the nature of his conduct or to a result of his c onduct when i t is his conscious
o bjective or desire to eng age in the conduct or cause the re sult.
And I believe that Mr. Perry was trying to get his truck home. And grante d, he pr obably w as an xious, h e probably was afraid, he proba bly knew that

-- he pr obably was eve n a little disorien ted because it didn ’ t loo k like he went straight home, pr oba bly because th ere was marijuana in the vehicle. I don ’ t know if it was smo ked, I don ’ t k now if he h ad smoked i t, I have no idea. But all of t hose things taken tog ether would pro bably mean that it may not have been his co ns cious objective to flee. It was hi s probable con scious o bjective to try to get that automobile to his hous e. And he suc ceeded in do ing that, b u

t in the process he didn ’ t show prompt compliance. And you ’ re charge d with figuring out whether it was his co nsci ous objective in doing that.
And I believe if you look at the totality of everything, when he actually got tha t vehic le to a lo ca tio n that w a s near his house, he then got ou t and f led. He did. It was

-- that se emed to me tha t was conscious, that he

-- he was giving

-

- he was receiving com mands, and he did not adhere to those commands. Now, he ’ s probably gonna g et up h ere and sa y, bu t they used t hat air horn, they made their p resence known, an d Mr. Perry, like I said, was pro bably afra id, probably an xious, and was just trying to get that v ehicle back to his hou se. And whether that is a conscious objective , that ’ s up to you guys to de cide. But I b e

lieve if you look at everything , I think it wa s his8 conscious objec tive to try t o get that automobile to his hou se. [ E mphasis added .]
III. Anal ysis
A. The legal pr inciples at play and a summary of why we overrule Appella nt ’ s sole issu e App ellant offers interrelated arguments fo r why the trial cour t should have
submitted an instruction on the lesser

- included offe nse o f ev ading o n foot ( or without
the use of a vehicle )

. T he argu ments rely primarily o n the p remise t ha t h e d id not evade the police using a vehicle because he did not know that he was being pursued
b y the police until he had arrived home. A n ancilla ry argument is that because of Appellant ’ s brief complian ce with the officer s ’ commands as he man e u vered t o the
fr ont of his vehicle and the n ran , he allegedly co mmitted tw o separa te offenses

— evadi ng using a vehicl e and evading on foot

. Appellant failed to preserve err or on his claim that the trial cour t erred by not
subm it ting the l esser

- included offense becau se h is ar gument on appeal does not comport with his argument at trial. Furth er, to obt ain an instructi on on the lesser

include d of fense , the evidence must be such that it would permit a jury to rationally
fi nd that, if the defendant is guilty, he is guilt y on ly of the lesse r

- inc luded offense

— i n this case, evadin g on foot

. The infe rences that Appellant rel ies on to argue that a jury
could reasonabl y find h im guilty only of the offense of evading only on foot ar e untenable

. We also reject Appellant’s final arg um ent that his few s eco nds of compliance with the officers’ comman ds after he had stopped his vehic le spl it his9 actions in to two separate offenses , with one b eing evading using a v ehicle and the
othe r b e i ng evading on foot. The tr ia l court committed n o er ro r w hen it ref used to
g

ive the jury t he instruction on the lesser

- includ ed offe nse . B. The elem ents of evading using a vehicle and of eva di ng on foot

“ Essentially, a per son commits a crime under [S] e ction 38.0 4 [of the P e nal Code] if he knows a pol ice of fi cer is atte mpting to arrest or de ta in him [] but
nevertheless refuses to yield to a po lic e show of authority. ” Jackson v. State , No s . 05

- 1 5

- 00414

- CR, 0 5

- 15

- 00415

- CR, 2016 WL 4010067, at * 7 (Tex. App.

— Dallas Jul y 22, 2016, no pet.) (mem. op., not de s i gnat ed for public a tion)

. A person may evade using

a vehicle or on foot

. The elemen ts of the offense of evading usin g a vehicle are “ a
person: (1) intentionally; (2) fle es; (3) from a person; (4) he knows is a peace offi cer or federal special investiga tor; ( 5) a ttemp ti ng to la wfully arrest or d etain him; and (6) t he acto r uses a vehicle whil e in flight. ” Id

. 1 E vading using a ve hicle a nd evadi ng on foot d i f fer only in that t h e latter does not include the element of using a veh icle

. Powell v . State , 20 6 S.W. 3d 1 42, 143 ( T ex. A pp.

— Waco 2006, pet. ref’d)

. E vad ing
with out the use of a veh icl e is a C lass A misdemeanor

. S ee generally Tex. P e nal Code

1 T he S tate must a ls o p rove that the attempted arrest or detention was lawf ul

. See Jackson , 2016 WL 4010 067 , at * 8

. T her e is no cont ention in t h is case that the attempted d etention of Appella nt was unl awful.10 Ann. § 38.04( b ). The penalty increas es to a felony of the third degree w hen “ the actor

u ses a vehicle

. . . while the actor is in fli ght

. ” Id. § 38.04( b ) (2)(A ). 2
Usin g di fferent “ means of locomot ion ” during flight does not break the f light
i n to two separate offenses ; instead, the consequence of using a vehicle elevat es the
offen se to a felony because the felo ny off ense “ require s onl y tha t a vehicle be used at

so me time dur ing the commission of thi s offense. ” See Hobbs v. State , 175 S.W.3d 777,
7 79 ( Tex. Cr i m. App. 2005)

. 3 Thus, ev ading using a vehicl e during one part of the flight and then resorting to foot “ const itute[s] one conti nuous criminal act o f evading

. ” Johnson v. State , No. 13

- 17

- 00545

- CR, 2019 WL 3884 873, at *4 n . 4 ( Tex.

2 B ecause the l egis la ture passed multiple amend men ts t o S ection 38 .04 i n 2011, there w as confusion about whether the statu t e ma de evading using a vehicl e a thi rd

deg ree felony. W e have pr eviou sly concluded that it do es . See Adetomiwa v. S tate , 4 21 S.W.3d 922 , 927 (Tex. App.

— Fort Worth 2014, no pet.) ( conc lud ing that th e off ense of evading arrest or detention is a third

- degree fe lony when the defendant u ses a vehicle in the flight, irrespective of prior convictions )

.

3 As stated in Hobbs , [ T he lan gua ge of Section 38.04] presents an issue o f statutory construction, partic ularl y whe ther the different means of locomotion are

“ allow ab le units o f prose cution ” und e r Section 38.04(a) which, in relevant part, defines the of fens e as a person who “ fl ee s from a person he knows is a peace officer attem pting lawfu l ly to arrest or deta in hi m. ” T his language plainly does not define separ ate of fe nses (or “ a llowabl e units of p rosecuti on ” ) when different means of locomotion are used. In addition, Section 38 .0 4(b)(1 ), which elevates the punishment level for th e offense d e fined in Section 3 8.04( a) w hen a vehicle is used, requires only that a v ehicl e be used at s ome tim e duri ng the commis sion of this offense.
1 75 S. W. 3 d at 779 ( footnotes om itted ).11 App.

— C o rpus Christi

– Edinb ur g Aug. 8, 2019, no pe t.) (mem. op., not designated for publication) ; se e Smith v. State , 483 S.W.3d 6 48, 65 6 n.6 ( Tex. A pp.

— Houst on [14th Dist.] 20 15, no pet.) ( “ We further note that ab andon ing o ne’s vehicl e during a police chase and continuing on foot is a continuation of e v a di ng in a vehicle. ” ); see also Lara
v. Sta te , No s . 13

- 04

- 282

- CR, 13

- 04

- 299

- CR, 2 007 WL 431241, at * 3 (Tex. App.

— Corpus Chri sti

– Edinburg Feb. 8, 2007, no pet.) (mem. op., not designated for publicati on ) (“[T]he [S] tate is precluded from seeking multiple convictio ns of evading

arre s t when the criminal ac t is one c ontinuo us course of con duct

. . . .”)

. A person “ flees ” by giving a nythi ng less than prompt compliance with an
officer ’ s direction to stop. Lopez v. State , 41 5 S.W.3 d 495, 497 (Tex. App.

— San Antonio 2013, no pet .) (quoting Horne v. State , 2 28 S.W.3d 44 2, 446 (T ex. App

. — Texarka na 200 7, no pet.) )

. Thus, t he fact that a de fenda nt prompted o nly a slow

speed chase does not fre e a defendan t from culpabilit y : “ T he statute d oes not require high

- speed fleeing, or even eff ectual fleeing. It requires only a n at tem pt to get away f

rom a known officer of th e law.” Mayfield v. State , 219 S.W.3d 538, 541 (Tex. App.

— Texark ana 2007, no pe t.)

. I n ot he r words, “ fleein g slowly is still f leeing. ” Id

. The re is no particular distanc e or speed that must be covered i n the ch ase to
in fer tha t the d efend a nt is f leeing: “ Although speed, distan ce, a nd duration of pursuit
are factors in determinin g whether a d efendant intenti o nally fled, ‘ no pa rticular speed, distance, or duration is requir ed to show the requisite intent i f oth er evidence
establ ishes s uch in tent. ’ ” Houst on v. State , No. 04

- 15

- 00 513

- C R, 2016 WL 3362055, at12 *3 (Tex. App.

— San Antonio June 15, 201 6, no pet.) ( mem . op., not design ate d for publication) ( quoting Griego v. State , 34 5 S.W.3d 742, 751 (Tex. App.

— Amar i l lo 201 1,
no p et. ) ) ; see als o Lope z v. State , No . 04

- 1 7

- 00 359

- CR, 201 8 WL 3747 817 , at * 2 (Tex. App.

— San Antonio Aug. 8 , 201 8 , no pet.) (m em . op., not designated for pu blica tion) (same).
The culpable mental state required to establ ish the offense of evading turns on the circums tan ces s u r ro unding the con duct. Riggs v. State , 4 82 S. W.3d 270, 276 (Tex. App.

— Waco 2015, pet. ref ’ d). Specificall y , “ the act of fleeing becomes cr imi n a l only
because of the actor ’ s knowledge that a peace officer is attempting lawfully to a rrest or detain the actor. ” Id

. But t h e fac t that a person pro vi des an explanation for fleei ng

“ does not ne gate or supersede an intent to evade police aut hori ty, w h i ch requires only that an actor (1) acknowledge an officer is attempting to lawfully detain him, and (2 ) decli nes to yield desp ite that know ledge. ” Johns on , 2 019 WL 3884873 , at *4

. The ele ment th at an officer is atte mpting to arrest or det ain the pe rs o n generally is met by the “ officer displaying authority by the use of emergency lig hts and
siren.” Id

. at *3 ; K ing v. Stat e , No. 01

- 18

- 00335

- C R , 201 9 WL 5432053 , at * 3 (T ex. App.

— Houston [1 st D ist.] Oct. 24, 2019, no pet.) ( mem. op., not d esignat ed for publication) ( “ Evidence that a pol ice o f f icer is asserting authority and attempting to
arrest or detain an individ ual in cludes use of e m ergency lights and sirens, poin ting to a
d river to pull the vehicle over, and i s suing verbal commands. ” (c iting D uvall v. State , 367 S.W.3d 509, 513 (Tex . A pp
. — Texarkana 2012, pet. ref ’ d) ))

.13 C. The standards for determining w h ether the tr ial court must submit an ins truct io n on a lesser

- inc l uded offense
A s the T e xas Court of Crim inal Appe a ls has not e d , “ T he two

- ste p test for determining whether a trial court is required to give a requested i n struction on a
lesser

- included o f f

ense i s well established. ” Bullock v. St ate , 509 S.W.3d 921, 924 (Tex. Crim. App. 2016). Th e two s teps ar e as follows :

• First, the trial co urt must “ d eterm in e whether the r equested instruction pertains t o an offense that is a lesser

- included offense o f the char ged
of fense, which is a matter of l aw. ” Id . (citing H all v. State , 225 S.W.3d 524, 535

– 36 (Tex. Crim

. App. 2007) ). “ Under this first step of the test,
an offense is a lesser

- inc luded offense if it is within the proof nec es sary

to establish the offense ch arged. ” Id. (citing S w eed v. S t ate , 351 S.W.3d 63, 68 (Tex. Crim. A p p. 2011), and Tex. C ode Crim. Proc. Ann. art. 37.09).

• Second, “ t he an aly s i s asks whether there is evidence in the record that supports giving the ins truction t o the jury. ” Id . at 924

– 25.

o “ Unde r this s econd s t ep, a d ef end ant i s entitled to an
instruction on a less er

- included offense when there is some evidence in the r ecord that would permit a jury to rationally find that, if the def endant is guilty, h e is guilty only of the
lesser

- include d offe n se. ” I d

. at 9 25 ( empha si s add ed ).14 o “ The evidence must establish that the lesse r

- included
offense is a va lid, rational alterna t ive t o the charged
offense. ” Id

.

 In making the determination wh e ther the
lesser

- inc luded offense is a rational alternative , all the evi denc e ad mitted at t r ial m ust be
examined (not just the evidence presente d by
the defendant ) , and “ [a] nything more than a sci ntilla of evidence is adequa t e to entitle a defendant to a lesser charge. ” Id

.

 The “ threshold showing is low, [but] it is n o t

enou gh that t he jury m ay disb elieve crucial evidence pertaining to the greate r offense, but
rather ther e must be some evide n c e d irectly germane to the lesser

- i ncluded offense for the
finder of fact to conside r before an
instruction on a lesser

- incl uded o ffense is

warra nted. ” Id

.

 The determination , however, doe s not turn on
the cre dibility of the evidence s uggesting a
lesser of f

en se ; “ the standard may be satis f i ed15 if some evidence refutes or negates other
evi dence establishing the greater offense or if
th e evi dence pres ented is s u bjec t to different interpretations.” Id

. IV. Application
A. Ap pel lant f a iled to pres erve his r eques t for a n i n struction on a lesser

included o ff ense based on the claim that he “di d not intentionally flee from a person he kne w was a peace off icer while usin g a v eh icle
. ” Further, t he record does not sup port t he submiss ion of an instruction that relie s on a n infer ence that Appellant did not know he was b eing pursued
. 1. Appellant d i d not preserve his claim of erro r based o n a pr ofess ion that h e did not see h is purs uers , an d the record fails to establish that he made such a profession.
I n t his appe al, w e deal only with the s econd step of the test to determine
whether to submit a le sser

- included offense ; that step asks if t here i s evide nce in t he
record that supports giving the jury the instruction requested by Appellan t. See id. at
924

– 25. The Sta te co ncedes tha t the first step of the test is met : “ Evading arrest or
detenti on on foot is, through an element

- based comparis on, a lesser

- included offe nse of ev ading arrest or detention in a vehicle. Thus, [Appellant] s atisfies the first requirement for obta ining a lesser

- included

- o ffense instruction. ”
If we understan d App ellant ’ s first contention , the trial court erred by fai ling t o submi t an in s t ruction on evading on fo o t because it was dark, the officers did not immediately activate the siren on their vehicle , and pivotally, Appellant st ated , “ I16 didn’t see you. ” He uses this professio n as the first basis to esta blish his o v erar ch i ng

cont ention that he c ould not h o ld an i ntent t o f lee unti l he knew that the police sought to de tain him and tha t he onl y acqu ired that knowledge once he stopped at his
reside nce . Appellant ’ s argume nt continues that he fled on foot after he becam e awa re that he was b e ing pu rsued

. But as explained below, t his basis for submitt ing the
inst ructi on on the lesser

- inclu d ed offense was nev er presented to the trial court , and
for thi s reason , error based on his content ion is forfeite d. Furth er, the reco r d do es not support th e contention that he claimed that he was i gnorant of the purs u it until he

sto pped his vehi cle

. A trial court h as no su a sp onte ob ligation to instruct a jury on a l ess er

- incl uded
offense ; t he defendant must preserve error by requesting an in struc tion on the lesser

in cluded offense

. Tolb e rt v. State , 306 S.W.3d 776, 7 81 (Tex. Cri m. App. 2 010) ; Gipson
v. State , No. 05

- 16

- 01065

- CR, 2017 WL 4247965, at *2 (Tex. App.

— Dallas Sept. 25, 2017, no pet.) (mem. op., not designated for publication ) ( “ A defen dant who did not
reque st an instruct ion on a lesser [

- ] included offense waives h is right to complain on appeal that the tr ial court was required to give the instruction.” )

. Generally , t o make

an adequate charge objection, [ t

] he objection must be speci fic and clea r enough to app rise the trial
cou rt of t he nature of the objection

— this sp ecificity requiremen t is to enable the tri al court [ “ ] to know in what respect the defendant regards the cha rge as defective and to afford him an opportunity to corr ect it before r eadin g the charge to the jury. [ ” ]17 Her nandez v. State , No. 02

- 17

- 00353

- CR , 2019 WL 490510 , at *6 (T e x . Ap p.

— F ort
Worth F eb. 7, 2019, pet. ref ’ d

) (mem . op. , not designated for publicati on ) ; see also
Te x . R. App. P. 33.1(a)(1) (requiring timel y and specific re que st to “ state [ ] the grounds for the ruling that the co mplaining party sought from the trial court with sufficient specificity to m ak e the trial court aware of the complaint ” ). Furth er, to preserve erro r that challenges the failure to in clude an inst ruc t ion r eq uire s an objection , it is
axiomatic that t he obje ction made to the trial court must comport with the one made
on app e al

. See Pennington v. St ate , 697 S.W.2d 387, 390 (Tex. Crim . App. 1985) ( “ Error presented on appeal must be the sa me as the objecti on ra ised before the trial court. ” ). Applying th e se pri nci ple s of p reserva tion to an objection bas ed on the failure

to submit a le s ser

- included offe nse, a n appell ant cannot offer on e basis for submitting
the issue in th e trial cou rt and t hen of fe r a new b asis on appeal

. See Gu s man v. State , No. 01

- 08

- 00621

- CR , 20 10 W L 299121 0 , at * 7 (T ex . App.

— H o uston [1 st Dist. ] July 29, 2010 , pet. re f ’ d) ( me m . op., no t des ignated f or publication) ( holding that error

was not preserved wh en appellant made diffe rent argum ents at trial and on appeal regard ing why lesser

- included offen se s of f elony

- murder or murder should h ave been
subm itted i n a cha rge that submitt ed the greater offense of capital mur der ); Newman v.
St ate , No. 14

- 05

- 01 125

- CR, 2 007 WL 1437624 , at * 4 (Tex. App

. — Hou ston [14th
D ist. ] Ma y 17, 2007, pet. ref ’ d) (mem. op., not designat ed for publicatio n) ( holdin g that e rror wa s not preserved be cau se a ppellant offer e d different ba s es for submissi on of lesse r

- i ncluded offen se of burglary of a bui lding and b ecause “ App ellan t ’ s rational e18 for the requested instruction di ffer [ed] substantially a nd [ d id ] not comport wit h the
rationale for his request a t trial ” ). Here, Appellant failed to preserve err or
. A bove, w e qu oted the argume nt tha t Appellant ’ s couns el mad e to the trial court as the ba sis fo r submitting the lesser

in clud ed offense of evading on foot : Appellant was loo king for a p lace to park. He
carried that theme into his jury argument. Not hing in the argument suggested that Ap pellant did not know tha t he was b eing pursued b y the p olice u ntil he stopped his
vehicle

. Thus, the rationale fo r Appellant ’ s o bjec tion in the tri al court does not

co m port with his a rgument on appeal

. T he tri al cour t never had the opportun ity to
evaluate the argum e nt that Appell ant make s on appeal and to decide w hether it
pres ente d a basis to s ubmit the lesser

- included offense. Appe l lant ha s failed to
preserve erro r. See Tex. R. App. P. 33.1(a)(1).
Even i f error w ere preserved , we would still re jec t Appellant’s cl a i m of e rror. Appel lant states that t h e f oll ow ing fa cts raise a scintilla of evidence to support his
cl aim that he did not kn ow that his vehicle was be ing pursued:
It was dark outside on that night. The officers did not activate the patrol car siren until appr oxi mat e ly 30 s eco nd s into the thr ee

- minute pursuit. [A ppellant] l ater tol d the officer [ s ,] “I didn’t see you.” Based on thes e facts a j ury could rationally believe [ Appellant] did not realize he w as being pursued

. [Citations omitted.] Apparently , part of the sugge stio n f ro m the quote is th at it was not physically
apparent tha t the police w ere pursuing because it was dar k a nd the pol ice used th eir
siren only for the latter two and a half min utes of a t hr ee

- m inute chase

. This19 a rgument offers no evidence that r easona bl y sup po rt s a c onclu sion that Appellant did

not know th at he w as being pursu ed. Appellant ’ s argument assum e s that he would
know he was b e ing pur sue d once the police sounded their siren but ac kn ow ledg es that the siren was activated for the vas t majo rity of the pur suit

. The v id eo of the pursuit sho w s that the darkness , if anything , accentuated the fl as hing o f the p olice

car ’ s ov erhead lights , and there is no explanation why Appellant could not have seen the lights directly beh ind him. Nor can we hea r Appellant ’ s prote st , “ I d idn ’ t see
you , ” which he allege s is found on the recording. Certainly, w e are not to decid e whether t he e vi dence su ggesting a le sser

- included offense i s credible, but that doe s

not mean that we must enter a realm of fa ntas y and accept a suggestion so f arfe tch ed

as the one that A ppellant did not know that he was being pursued base d on the
unsupp ortable inf erences th a t Appe llant ask s us to draw.
2. Appellant did not preserve his claim of e rror based on a claim that h is condu ct cre ated a fact que stion regarding whether he had an intent to flee , and the re cord doe s not support the inference s th at A ppellan t relies on to make t hat cl aim. Appellant next appears to argue that hi s behavior whil e b e ing pursu ed by the police created a fac t qu estion reg ardin g whether he had intended to f lee fro m his
pursuers and thus w arranted the submissio n of the l ess er

- inclu ded offense because the jury cou ld beli eve that he had formulated an inten t to flee only after he had
stopp ed his vehic le and had ru n.20 This argument suff ers from th e s ame preservation flaw as Ap pel lant ’ s first
argument. H is counsel appeared to ar gue to the trial court and the jury that Appel lant

w as flee ing b ut that his flight ha d the specific goal of getting his car home

— appar e n tly in the ho pe that by do ing so , i t w o uld not be seized. Appellant’s change in emphasis from trial to appeal implic itly recognizes t hat

t he argument he made at trial was tantam oun t t o a confes sion of guilt. Appellant ’ s argument that he did not show pr o mpt c omp liance beca use h e wa s tryin g to get his
car home was a concession that he had operated h is vehicle w ith the re qui site in tent and had committed the offense with which he was cha r ged

. See Ford v. St ate , Nos. 02

- 1 4

- 00176

- CR , 0 2

- 14

- 00177

- CR, 2015 WL 345838 3 , at * 2

– 3 (Te x. Ap p.

— Fort Worth
M a y 28, 2015, pe t. r e f ’ d) (mem. op., not designated for publication) ( holding th at evidence s upported conviction when appellant ’ s excuse for not pulling over a t the
earl iest possi ble mome nt was that he had “ merely [dr iven] around the blo ck an d [had] pulled i nto his driveway so his car wou l d not be towed ” ) ; Robinson v. State , Nos. 13

- 1 0

- 00064

- CR, 13

- 10

- 0006 5

- CR, 2011 WL 861152, at * 4 ( Tex. App.

— Corpus Christi

– Edinburg Mar. 10, 2011, pet. ref ’ d

) (mem. op., not d e signated for p ublication) ( reje cting argum ent tha t “ [d]riv ing three blocks a t a slo w speed to her driveway after
seein g emerge ncy [lights] activated [co uld not] be considered ‘intentionally fleeing’
under the facts and circu mstances in this cas e ” )

. Appellant ’ s ef fort t o skir t that con cessi on dem ons trate s that he is ma king a new

ar gument on appeal . It, also, forces him to make a rgume nts th at cannot be sustained

.21 H is argument transforms from , in essence , admitting that he was fleein g but h ad a

s ubject ive reaso n for doin g so to one that the cir cumst ance s of his b ehavior allowed the jury to draw a reasonable inference that he was n ot fleeing or per hap s demonstrati ng an intent to flee. T h i s t h e o r y t u r n s on the p r e m i s e t h a t “ [ a ] j u r y c o u l d
b e l i e v e t h a t o n c e [Appellant] n o t i c e d t h e p u r s u i t , h e s t o p p e d h i s v e h i c l e a t h i s h o m e . ” Again, we mu st look at the entire record to decide if it reasonabl y raise s a

s cintilla of evidence th at the defendant is guilty only of the l esser offense. See Benefi eld
v. State , 389 S.W.3d 564, 57 4 (T ex. App.

— H ousto n [14th Dist.] 2012, pet
. ref ’ d) ( stating that “ [o] ur review of the record evidence to determi ne whether a defend ant is
enti tled t o a charge on a lesser

- inclu ded offense considers whether there is more than

a scintilla o f evidence in suppo rt of the of fense ” and that “ we do not cons ider the
credibi lit y of the eviden ce or whether it is controverted o r in conflict. H oweve r, w e

w

ill credit the defendant only with reasona ble inferences that may be drawn from the

e vidence. ” (citatio ns omitted ) ). To argue t hat a reasonable jury could bel ieve that Appella nt did not know t hat he was being pursued by the po lice re quires a comple te s uspension of disb elief

. The only way that Appellant can sp in the record to support the presen t theory is t o draw
unsup p o rtable inf erenc es o r to ignore the portio n s of the record con tra ry to h is
port rayal :

• Appellant argues that th e circuitous course he drove was close to his
house

. From this behavior Appellant concludes t hat “ [i ] t is less likely22 [t hat he] intended to fle e w hi le us ing the vehicle since he never lef t the

are a a round h is home

. This is especially more pl ausible considering [h is]

statem ents that he was trying to park his vehicle at home. ” What th is

ar gument never explains is how the jury could draw an inferen ce that Appellant was simply trying to ge t home by tak i ng a fi gure

- eight route
whil e driving in e xcess of the speed limi t rather than driving straight
there.

• If t he ex planation f or the circuitous route is that he was trying to get
home to park i n a sa f e ar ea , t his cla im does not offer a n exp lanati o n for why he forewent immed iately pul li n g over while travelin g through blocks
of traffic

- less residential streets. Again, i t wa s Appell ant’s choice to d ecide when he would comply , and his lack of imme diate compli an ce established his culpability

.

• App el lant ar gue s that he slowed his vehicle as he ran four stop sig ns. In Ap pellant ’ s view, “ This indicates he did not intend to el ude capture

us ing a vehicle because he did not take more eva sive actions

. ” Certainly, App el lant could have driv en mo re aggr ess ively

. But that does not mean

t hat the aggressive b ehavior h e did engage in fails to establish his intent
to flee , i .e., the intent demonstrate d by run ning four stop signs in the

cou rse of a co uple of mi nutes
. T here i s a self

- apparent inte nt re vealed23 by those actions , and that intent l acks any explanation other than that he was fleeing

.

• Appellant tries to avoid the fac t that an office r saw hi m t hrowing something from the vehicle b y claimin g tha t the other officer said th at
he did not see any contra band thr own. T his misstates the statem ents of
the offi cer w h o was driving ; he responded that it looked like objects
were b e ing thrown but that he coul d not tell , while the officer who was

not dri ving s pecifi cally said that he h a d seen object s being thr own . The
of fic e r who had seen ob jects being thro wn c onfirmed what he saw whe n he testified

.

• Finally, Appel lant argues that the jury could have believed that he did not have any c ontra band

— and thu s had no motive to f lee

— be cause o n e of the office rs could not conf irm c onclu si vely that the leafy sub stance he

saw on A p pellant ’ s person was ma rij uana. This sl ice of the record ignores Appella nt ’ s statement tha t he had “ a little weed

. ” A ppell ant ’ s own words conclusively demon strate a mo t i ve to fle e. The jury saw how Appellant ’ s dri vin g b e havior imme d iately changed once the police announce d t he ir presence in a way t hat no person dri ving a ve h icle at night could possibly miss , and this b ehavi or remain ed consistent until he had accomp lishe d
his goal of getting his vehicle to his re side nce . T he evidence does not reasonably raise24 a scintilla of ev idence that Appellant d id not know he was being p ursued when the
bas e s for th at contention are unten able.
B. The re was no break in A ppellan t ’ s fl i gh t that transformed his continuous course o f c on duct into two s eparate offenses. Appellant ’ s fin al argument is that h e did n ot com mit a “ continuous of fense. ” Apparently , the purpose o f thi s argument is to break the chain of ev ents betwe en his

act of fl ee ing in his v ehicle and his a ct of flee ing o n fo ot and to s uggest that he had
committed two offe n ses

— on e f leeing u sing a vehicle and the oth er fleeing on foot. Appellant ’ s sp ecific argu ment is as f ollows : In this case [,] there was voluntary termination b y [ A ppellant] and acts of complia nce in res ponse to the s how o f authority. T his was not a continuous unbroken cou r se of conduct. Once [Appella nt] gave himself up [,] an y possible evasion wi th th e use of a vehicle had come to an end. Since the evidence in di cate s t his was no t a continuous offense, the trial court sho uld have allowed a n instruction on the lesser

- included o f fen se. [Citation omitted.] Aga i n, no ra tional jury could see the break in the sequ ence of events that Appellant posits

. There was no b re ak in the conti nuous chain of events ; i ns tead, Appellant u sed

two me ans of locomotion to f lee. Appellant hardly “ gave him s e lf up ” when he reached hi s residence

. Inste ad, he stopped when faced w ith a police vehicle coming toward the front of his vehicle a nd apparently because he h ad coinciden tal ly reached his r esi dence

. When he stopped , he
exited his vehicl e while confronted with several officer s who had their guns dr awn.
He raise d his hand s fo r about eight seconds while he m aneuver ed himself to the fr o n t25 of his vehicle . Once he wa s in a posit ion whe re the vehicle pr ovide d a barricade to
the offi cers’ v is i on and an y sho ts they might fire, h e r an . If one accepts that Appe llant was fleeing f rom the police in his vehicle , his acts once he stopped his
veh ic le demonst rate only a continu ed effort at evasion

. The authority that Appellant cites does not support his a rgument t hat the

se conds while he tried to maneuver out of h arm ’ s way transformed h is fligh t int o t wo offense s. The cases Appellant cites addres s whether there might be s uch a long
tempor al break of hou rs or days that t wo offenses might b e establish ed

. That theoretical argument has no application to the fact s her e . Specifically , w hen the cour t of criminal appeals dealt with the question of
whe th er a combined effort o f fle eing using a veh icle and on foot constituted a

co ntinuing offen s e under S ection 38.04 of the P e nal Code, it addressed the arg ument
that such a rule would c reate a continuing offense that could last for “ days, weeks,
months [ , ] or ye ars. ” See Hob bs , 1 75 S.W.3d at 779

– 80. The court of criminal appeals
did not resolve th i s argument b ut simply noted that under the facts of the case und er revie w , po lice had not terminated their pursuit because th ey had temporarily suspended their pur s ui t wh e n it became d ark a nd had “ resumed se veral hours later
when it was feasible for th e o f ficers t o effectively search for the appellant. ” Id. at 780.
Ho b bs and the cas es c i ting it do n ot support the proposition that Appellant ’ s eight seconds of feign e d compl iance while he ma neuve red into a pos ition t o ru n transformed h is flight into t wo sep a rate off enses. As stated in State v. Ojiaku ,26 The court [in Hobbs ] expr essly distinguished the case before it from the hypo thetical si tuati on described by the def en da nt w here a “ successful evader ” co uld be c harged with a criminal trespass for somet hing h e did

“ da ys, weeks, months or yea rs later. ” Thus, even though the court in Ho bbs concluded the defendant was committing a continuing off ense, it did so because of th e uniq ue facts in the case. It di d n ot pro nounce evading arrest as always constituti ng a c ontinuing offense, an d it dist ingu ished the defendant ’ s continuing offen se fr om a hypothetical situation where an offender could be viewe d as continuously evading
ar re st f or years. 424 S.W.3d 633, 63 8 (Tex. App.

— Dallas 2 013, pet. ref ’ d) (citatio ns o mitt e d )

. H er e , we are clearly dealing wit h one episode of evading . To ar gue t hat Appe llant ’ s efforts to maneuver to a position where he could run with a lessened ri sk
of b e ing shot and to ge t a head start on the race hardly creates an inference tha t he

wa s operat ing under two different inten t s because there were two episodes o f cri minal
condu ct. C. Summary
W e hold that Appellant failed to preserve his claim on appe al be c au se the
rationale he offered to the trial cou rt for submit ting an instruc tion on th e lesser

included offense does not comport w ith h is argument on appeal

. Even if error were
preserv ed, the evidence does not reasonably raise a scintilla of evid ence to su p po rt t he
claim that he was guilty on l y of e vad ing on foot. Finally, the f licker of feigned compliance by Appellant does not transform his effort to flee in to tw o offenses. Accordingly, w e overrule Appell ant ’ s sole issue

.27 V. Concl usion Having overruled Ap pellant ’ s sole issue, w e affirm t he trial court ’ s judgm ent
. /s/ Dabney Bassel Dabney Bassel Just ice
Do Not Publish Tex. R. App. P. 47.2(b)
De liver ed : January 30, 2020