COURT OF A PPEAL S EI GHTH D I STRI CT OF TEXAS ELPASO, TEXAS

TI TO HUMB ERTO DIAZ , Appellant,
v.
THE STATE OF TEXAS, Appellee
. § § § § § § No. 08-09-00002- CR

Appea l from the County Court at L aw #7 of El Paso County , Texas (TC# 20080C09746)

O P I N I O N Appellant appe als his conviction for e vadingarr est or dete ntion. A jury found him guilty and sente nced him to 180 day s imprisonment, reduce d to 1 y ear of community

supervision. He raises two issues on a

ppeal c halleng ing both the le g al and f actua l sufficienc y

of the e vidence supporting the conviction. On J une 7, 2008, the Socor ro Police De partment dispatche d an off icer to investigate a noise complaint at a Socor ro house pa

rty . The pa

rty had over 250 people. Af

ter roc ks and bee r bottles were thrown at a

n office r’s squad c ar, O ffice r Va rela was dispatche d to assist. S erg eant Osca r Robles and other

backup of

fice rs next arrived. Of

fice r Va rela and Serg eant Robles approa ched the house to speak to the home owner . At trial, Off

icer Var ela testified that when he a nd the other of

fice rs g ot to the front g ate, Appellant shut the g ate door , and re fused the of fice rs entry . When the office rs aske d to talk to the owner , Appellant ig nored the ir reque st and continued to hold the g ate shut. B eca use of Appellant’s lac k of coope ration and be cause other pa rtyg oers we re c lose at hand, the office rspushed the g ate ope n. Apellant then wa lked awa y despite the off

icer s’ orde rs “[s] top [ and] come back.” The Appe llant locked himself inside the house. The off icer s then retur

n to the street a

nd reque sted tow trucks to re move and impound illega lly parke d vehicles. When the tow truc ks arr ived, both the homeowne r and the Appellant
came out of the house in an e ffor t to stop t he towingcompany from re moving the ve hicles. The office rs promptly

arr ested the A

ppellant and c harg ed him with evading arr est or dete ntion. At trial, the cour

t gr anted Appe llant’s motion in l imine to ex clude e vidence of Appellant’s c riminal rec ord. Appe llant testified in his own defense , and on dire ct examination in response to counsel’s que stion if he thought the of fice rs wer e g oing to a

rre st him, Appellant replied, “ Yes-- well, I

[had] a wa

rra nt. And that office r-- he knew . . . .” Appe llant’s response enter ed the r ecor d without objection. In I ssue One, A

ppellant cha lleng es the leg al suffic iency of the e vidence . When review ing the evidenc e submitted at trial to deter mine its lega l sufficienc y , this Court ex amines all evidenc e, both prope rly

and improper ly

admitted, in a light most favor able to the ve rdict to deter mine whether

any rational trier

of fa ct could find the e ssential elements of the alleg ed offe nse beyond a re asonable doubt. Miramontes v. State , 225 S.W .3d 132, 139-40 (Te x .App.-- El Paso 2005, no pet.). L eg al suffic iency of the e vidence should be assesse d by the eleme nts of the par ticular off ense a s indicated by

the hy pothetically

corr ect jury

char g e for

the ca se. Malik v. State , 953 S.W .2d 234, 239-40 (Te x .Crim.App. 1997). In our re view, we are not to re-e x amine the evidenc e, imposing our own judg ment as to whethe r guilt has been prope rly established beyond a re asonable doubt; rather, w e ar e only to assess if both the explicit and impl icit findings by the trier of

fac t are rational. Lyon v. State , 885 S.W .2d 506, 516-17 (Te x .App.--E l Paso 1994,
-2-pet. re f’d) . Evidentiary inconsistencies a

re r esolved in favor of the ve rdict. Matson v. State , 819 S.W .2d 839, 843 (Tex.Crim.App. 1991). This standard of

revie w is applicable to both direct and c ircumstantial evidenc e ca ses. Garcia v. State , 871 S.W .2d 279, 280 (Tex.App.--El Paso 1994, no pet.) . “The trier of fac t, not the appe llate cour

t, is free to acc ept or re

ject all or a

ny portion of any

witness’s testimony .” Belton v. State , 900 S.W .2d 886, 897 (Tex.App.--El Paso 1995, pet. r ef’ d). Ac cording ly , a jury ’s finding s of fa ct in a cr iminal procee ding a re g iven substantial defe renc e. Leyva v . State , 840 S.W .2d 757, 759 (Tex.App.--El Paso 1992, pet. r ef’ d). In I ssue Two, Appe llant challeng es the fa ctual suff iciency of the e vidence . When revie wingthe evidenc e to deter mine if it is factually

sufficie nt to support a conviction, we vie w all evidenc e fr om a neutra l perspec tive to determine whether the fa ct finder

was ra tionally justified in finding guilt bey ond a re asonable doubt. See W hipple v. State , 281 S.W .3d 482, 495 (Tex.App.--El Paso 2008, pet. r ef’ d). Evidenc e ca n be fa ctually

insufficient in two wa

y s: (1) the evidenc e supportingthe ver dict, by itself, is too weak to support the finding of guilt bey ond a
rea sonable doubt; or (2) when ther e is evidenc e both supportingand contr adictingthe ver dict, weighing a ll evidence , the contra ry evidenc e is so strongthat the def endant’ s guilt cannot be proven be yond a re asonable doubt. See R oberts v. State , 220 S.W .3d 521, 524 (Tex.Crim.App. 2007). We must give de fer ence to the fac t finder’ s role as the sole judg e of the weight and
cre dibilit y

g iven to witness testimony
. See J ohnson v. State , 23 S.W .3d 1, 7 (Tex.Crim.App. 2000). We may

only reve rse a judgme nt for fa ctual insuffic iency if it is necessar

y to “pre vent manifest injustice.” See Laster v. State , 275 S.W .3d 512, 518 (Tex.Crim.App. 2009). The e ssential elements of e vadingarr est or dete ntion are: (1) a per son; (2) intentionally
-3-flee s; (3) fr om a pea ce of fice r; (4) w ith knowledg e he is a peac e off icer ; (5) who is attemptingto detain the de fenda

nt; and (6) the attempted detention is lawful. T E X .P E N A L C O D E AN N . § 38.04(a) (Ve rnon Supp. 2009). Specific ally , Appellant cha lleng es the suff iciency of the evidenc e of the second a

nd six th elements. 1 Wit h respe ct to the sec ond element, Appe llant contends there is no evidence from which a jury could conc lude he intentionally fled fr om the police off

icer s. Howeve r, both offic ers testified that Appellant wa lked awa y afte r beingquestioned at the g ate de spite their commands to stop. Further , testimony

indicated Appe llant refuse d to come out of the house in response to the office r’s re quest. Althoug h the re cord doe s not directly addre ss the intent behind Apellant’s flig ht, we must presume that the jury rec onciled any

conflictinginfere nces f

rom the evide nce when they

rea ched the ir guilty

verdic t. See R obbins v. State , 145 S.W .3d 306, 309 (Tex.App.-- El Paso 2004, pet. ref

’d). Wit h respe ct to the six th element, Appe llant contends that his interac tion with Officer Var ela a nd Serg eant Robles wa s nothing more than an “ encounte r” a nd argues that he w as fr ee to terminate the conver sation and wa lk away at any time. He fur

ther c laims that the evidenc e wa s leg ally insufficient to establish re asonable suspicion to connect him to any criminal ac tivity

that would war

rant a n investigative detention, or that his detention wa s lawful. We find that the circ umstances surr ounding the interac tion between A ppellant and the of

fice rs sug g est otherwise
.

In his brief, the A

ppellant makes r efe renc e to cha lleng ing the leg al suffic iency of the 1 fifth eleme nt as well. Howe ver this ar gument is not properly briefe d and is there fore waived on appea l. SeeT E X .R.A P P .P. 38.1(i)(the a ppellant’s brie f must contain a c lear and conc ise argument for the c ontentions made, with appropr iate citations to authorities and to the r ecor d), see also Rhodes v. State , 308 S.W .3d 6, 14 (Tex.App.--Ea stland 2009, pet. dism’d)(inef fec tive counsel argument not preser

ved on appe al due to inade quate br iefing ). -4-There are three distinct ty pes of inter actions betwe en a policeoffice r and a citizen: (1) encounte rs; (2) investig ative dete ntions; and (3) ar rests. State v. Pe rez , 85 S.W .3d 817, 819 (Tex.Crim.App. 2002). In an enc ounter, a n office r may

ask the c itiz en if he is willi ngto answer questions or pose questions to him if he is willing to listen. Perez , 85 S.W .3d at 819. Howe ver, duringan enc ounter, the c itiz en ca n terminate the interac tion with the officer and wa lk away

at any time. Munera v . State , 965 S.W .2d 523, 527 (Tex.App.--Houston [14th Dist.] 1997, pet. ref ’d). Consensua l encounter s do not trigg er F ourth Amendment prote ction if a re asonable person would f

eel f ree to disreg ard the office r and e nd the enc ounter a t their own will and at a

ny time. Florida v. Bostick, 501 U.S. 429, 434, 111 S.C t. 2382, 2386, 115 L .Ed.2d 389 (1991). Reg ardle ss of any

wrong doing, in a

n encounte r off

icer s may ask the individual g ener al questions or ask to see and examine the individual’s identifica tion, so long as the of

fice r does not indicate that compliance is require d. Bostick, 501 U.S. at 434-35, 111 S.Ct. at 2386. By comparison, during a

n investiga

tive detention, an of

fice r is authorized to temporar ily detain an individual for

investigative purposes whe n the offic er ha s rea sonable suspicion that the individual could be involved in some ty pe of c riminal activity
. See Balentine v. State , 71 S.W .3d 763, 768 (Tex.Crim.App. 2002). Investig ative dete ntions are justified whe n, afte r consider ing the totality

of the situation, the detainingoffice r has spe cific a rticulable f

acts whic h, when take n toge ther with rational infere nces f rom those fa cts, lead him to deter mine that the per son detained actua lly is, has been, or

soon will be eng ag ed in cr iminal activity
. Balentine , 71 S.W .3d at 768. The c ontrolling que stion is whether the a ctions of the off icer would have ma de a r easona ble person f eel that he was not fr ee to de cline the of fice r’s re quest or other

wise terminate the encounte r. State v. Ve lasquez , 994 S.W .2d 676, 679 (Tex.Crim.App. 1999). Consensual
-5-encounte rs ca n become investigative detentions if the off icer convey s an indication that compliance is mandatory
. Velasquez , 994 S.W .2d at 679. Ba sed on the e vidence and his possible participation in criminal activity , a rational jury could infer

that the offic ers ha d rea sonable suspicion to lawfully detain Appe llant pursuant to their noise complaint investig ation. See Balentine , 71 S.W .3d at 768. Reasona ble suspicion indicatingAppellant’s possible cr iminal activity exis ted when the first repor ts of bottles and rocks be ing thr own at an of fice r’s squad c ar c ame ove r the police radio. It was bolstere d when Appellant, the f

irst individual the officer s interac ted with at the par ty , held the fr ont ga

te shut so that the offic ers c ould not enter the house ’s front yard to c onduct their investig ation. Appellant’s unc ooperative attitude in helping the office rs locate the homeowne r fur ther contributed to the off

icer s’ suspicion. The off

icer s also clea

rly indicated their

interac tion with Appellant wa s not a mere encounte r by commandinghim to st op and re turn when he beg an to walk aw ay . Additionally , Appellant re cognized he was not fr ee to lea ve at that time, and te stified that he thoug ht the office rs wer e g oing to a rre st him. Based on the totality of the situation, a rational jury

could conc lude that the off icer s had spec ific ar

ticulable fa cts that would nec essitate detainingAppellant to furthe r their investig ation. See B alentine , 71 S.W .3d 768, see also Boyd v. State , 217 S.W .3d 37, 43 (Tex.App.--Ea stland 2006, pet. ref ’d)( stating a

n individual could be char g ed with eva ding a

rre st or detention when a

police off

icer is questioning him about a noise complaint made on his location, and the individual subsequently leave s befor e the of

fice r is done with his investigation). Vie wingthe evidenc e in a lig ht most favorable to the verdic t, a
rea sonable minded juror

could deter

mine that Appellant eva ded ar rest whe n he wa lked awa y from the police office rs. The e vidence was leg ally sufficie nt to support his conviction beyond a
-6-rea sonable doubt. Ac cording ly , I ssue One is ove rruled.

Appellant incor

porate d most of the same a rguments made in I ssue One in c halleng ing I ssue Two. In addition, Appellant contends the State’s witnesses, Of fice r Va rela and Serg eant Robles, ga

ve conf licting testimony . On the other hand, he c ontends that the testimonies offe red by the def ense’ s witnesses, althoug h “not exactly alike” but “ larg ely

simil ar” was not impeac hed and should have been g iven more w eig ht by the jury . We must defer to the jury ’s judg ment with respe ct to the cr edibility

g iven to eyewitness testimonies. Johnson v. State , 176 S.W .3d 74, 78 (Tex.App.--Houston [1st Dist.] 2004, pet. re f’d) . In the instant case , the jury g ave mor e
cre dibilit y

to the testimony

g iven by the State’s witnesses. See J ohnson , 176 S.W .3d at 78. This Court must defer to the jury ’s re solution. See J ohnson , 23 S.W .3d at 7. While viewing the evidenc e fr om a neutra l perspec tive, we hold that the jury was rationally

justified in determining Appellant eva ded ar

rest whe n he wa lked awa y from the police office rs. Take n by itself, the evidenc e wa s strongenough to support Appellant’s convic tion and any contra ry evidenc e did not outweig h the evidenc e in favor of the ve rdict. The e vidence cre ated no manif est injustice and was ther efor e fa ctually

sufficie nt to support Appellant’s conviction beyond a re asonable doubt. I ssue Two is over

ruled. The trial c ourt ce rtified Appe llant’s rig ht to appeal in this case , but the cer tification does not bear Appellant’s sig nature indicatingthat he wa s informed of his rights to appeal a nd to file a pro se petition for discre tionary revie w with the Texas Court of Criminal Appeals. See T E X .R.A P P .P. 25.2(d). The c ertifica tion is defective, a

nd has not bee n corr ecte d by Appellant’s attorney , or the trial c ourt. To re medy this defec t, this C ourt ORDERS Appellant’s attorne y , pursuant to T E X .R.A P P .P. 48.4, to send Appellant a c opy of this opinion and this C ourt’s
-7-judgme nt, to notify Appellant of his right to file a pro sepetition for discre tionary revie w, and to inform Appellant of

the applica

ble dea dlines. SeeT E X .R.A P P .P. 48.4, 68. Appellant’s attorne y is further O RDERED, to comply with all of the re quirements of T E X .R.A P P .P. 48.4. Acc ording ly , we a ffirm the judgment of the trial c ourt.

August 18, 2010 DAVI D WEL L I NGTONCHEW, C hief Just ice Be fore Chew, C.J ., McClure, a nd Rivera, JJ
. (Do Not Publish)

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