## NO. 12

- 16

- 00094

- CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

SAMUEL RICARDO ANAYA , JR., APPELLANT

V.
THE STATE OF TEXAS, APPELLEE §

§

§ APPEAL FROM THE 238T H

JUDICIAL DISTRICT COURT

MIDLAND COUNTY, TEXA S

MEMORANDUM OPINION Samuel Ricardo Anaya, Jr. appeals from his conviction for evading arrest or detention. In three issues, he contends the evidence is insufficient to support his conviction, his due process rights were violated, and the State engaged in improper closing argument. We affirm.

B ACKGROUND Sergeant Kenneth Angell with the Midland Police Department testified that, on the night of the offense, he was in his marked pat rol vehicle and was wearing his police uniform when he responded to a call regarding a potential vehicle burglary by two men . He stopped his vehicle when he saw two men emerge from the side of a fence. Angell testified that his vehicle’s headlights were on, but his red and blue lights were not. One man began retreating into the shadows when he saw Angell. The other man, Appellant, carried an item wrapped in a shirt. Once Angell exited his vehicle, Appellant tried to distance himself from Angell. He pl aced his hand up in a “stiff

- arm fashion.” Angell stated, “Hey. Police. Come here. Police. Stop. ” Appellant did not stop. Angell pursued Appellant, who sped up whenever Angell sped up. Angell testified that Appellant was saying, “Why? Why? Why?” Angell instructed Appellant to stop, get on the ground, and quit running, but Appellant failed to comply. Eventually, Angell caught Appellant. Officer Ciro Chairez of the Midland2

Police Department testified that he placed Appellant in handcuffs while Angell at tempted to
locate the second man who had fled the scene. That man was never found. Angell testified that two new sets of hair clippers were wrapped in the shirt that Appellant had been carrying. He testified that the clippers were still inside their ind ividual packaging. Angell subsequently learned that, on the night of the offense, there was a theft at a local shop that sold barber supplies. The State charged Appellant with evading arrest or detention, enhanced by two prior convictions. Appellant p leaded “not guilty.” A jury found Appellant guilty of evading arrest or detention. The trial court found the indictment’s two enhancement paragraphs to be “true,” and sentenced Appellant to imprisonment for fifteen years.

S UFFICIENCY OF THE E VIDENCE
I n his first issue, Appellant challenges the sufficiency of the evidence to support his conviction. Appellant argues that he acted reasonably when backing away from Sergeant Angell and that the evidence failed to show he knew he was moving away from an off icer, as opposed to someone intending to cause him harm. Standard of Review and Applicable Law A person commits the offense of evading arrest or detention when he intentionally flees from a person he knows is a peace officer attempting to lawfully arrest o r detain him. See T EX

. P ENAL C ODE A NN . § 38.04(a) (West Supp. 2016). When reviewing the sufficiency of the evidence, we determine whether, considering all the evidence in the light most favorable to the verdict, the jury was rationally justified in findi ng guilt beyond a reasonable doubt. 1 Brooks v.
State , 323 S.W.3d 8 93, 899 (Tex. Crim. App. 2010)

. Th e jury is the sole judge of the witnesses’ credibility and the weight to be given their testimony. Id

. We give deference to the jury’s responsibility to fairly resolve evidentiary conflicts, weigh the evidence, and draw reasonable
inferences from basic facts to ultimate facts. Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Circumstantial evidence is as probative as direct evidence in establis hing the
accused’s guilt

. Id

.

1 Appellant also challenges the factual su fficiency of the evidence. However, “the Jackson v. Virginia legal

sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.” Brooks , 323 S.W.3d at 895.3

Analysis In this case, the jury heard evidence that Sergeant Angell identified himself as a police officer, was in a marked patrol vehicle, and was wearing his uniform at the time of the offense. Instead of responding to Ang ell’s commands to stop, Appellant attempted to flee the scene. Angell testified that, even after being caught, Appellant got on his hands and knees, did not want to lay on the ground, and struggled to be handcuffed. Because Sergeant Angell was in a marked vehicle, was wearing his uniform, announced his identity, and commanded Appellant to stop, but Appellant ignored Angell’s commands and resisted even after being captured, the jury could reasonably conclude that Appellant knew Angell was a police officer a ttempting to lawfully arrest or detain him, but Appellant intentionally fled from Angell. See T EX

. P ENAL C ODE A NN . § 38.04(a). “Even a dispirited, brief

attem pt to walk away from an officer’ s command to stop has been held to be sufficient flight to

const itute evading arrest or detention.” Henderson v. State , No. 12

- 09

- 00399

- CR, 2011 WL 2162820, at *5 (Tex. App.

— Tyler May 31, 2011, no pet.) (mem. op., not designated for publication). Viewing the evidence in the light most favorable to the verdict, we con clude that the jury was rationally justified in finding, beyond a reasonable doubt, that Appellant committed the offense of evading arrest or detention

. See Brooks , 323 S.W.3d at 899

. We overrule issue

one.

D UE P ROCESS In his second issue, Appellant contends that his conviction and sentence should be set aside because his due process rights were violated. According to Appellant, he did nothing wrong or illegal, could not have expected a police encounter, and “[a] conviction and fifteen (15) year sent ence for a flawed encounter with law enforcement seems harsh and unreasonable .” Analysis We first note that Appellant failed to preserve his due process complaint by neglecting to
raise it in the trial court. See T EX

. R. A PP

. P. 33.1(a); see also Pena v. State , 285 S.W.3d 459,
463

- 64 (Tex. Crim. App. 2009). Even had Appellant preserved error, his complaint fails for two

reasons. First, Appellant’s conviction is supported by legally sufficient evidence. The Texas Court of Criminal Appeals has rejected th e argument that a conviction supported by legally4

sufficient evidence is in violation of due process. See Estrada v. State , 313 S.W.3d 274, 304

- 05 (Tex. Crim. App. 2010); see also Brooks , 323 S.W.3d at 899 (Jackson sets forth sufficiency
standard of revie w under due process clause). Second, Appellant was charged with a state jail felony, enhanced to a second degree offense by two prior felony convictions. His fifteen

- year sentence falls within the applicable statutorily prescribed punishment range. See T EX

. P ENAL C ODE A NN . §§ 12.33 (identifying second degree felony punishment of two to twenty years in prison), 12.425(b) (describing enhancement of state jail felony), 38.04(b)(1)(A) (stating when evading is a state jail felony) (West 2011 & West Supp. 2016 ). The trial court’s decision to impose a particular sentence within the statutorily prescribed ran ge of punishment does not violate due process. See Barrow
v. State , 207 S.W.3d 377, 381 (Tex. Crim. App. 2006). Accordingly, because neither Appellant’s c onviction nor his sentence violate due process, we overrule issue two.

C LOSING A RGUMENTS In his third issue, Appellant contends that the State engaged in improper closing argument. Standard of Review Proper jury argument consists of summation of the evi dence, reasonable deductions from
the evidence
, answer s to argument s of opposing counsel, and plea s for law enforcement. Brown
v. State , 270 S.W.3d 564, 570 (Tex. Crim. App. 2008). To determine if the prosecut or made an improper argument, we consider the entire argument in context. See Rodriguez v. State , 90 S.W.3d 340, 364 ( Tex. App.

— El Paso 2001, pet. ref’ d). Analysis During closing, the State argued as follows:

. . . That is your only decision at this point, ladies and gentlemen. Is he responsible o r not? It ’ s a serious crime.
How serious, what the conse quence ought to be, again, that’ s a decision the judge will have to make after the guilty verdict. Your decision

–
Defense counsel objected, stating “Whether or not there’ s g uilt is solely to be determined by the jury, and they can’t even consider what the

-- anything about any punishment. ” Counsel then5

moved for a mistrial. The trial court denied the motion for mistrial, but instructed the jury that “it is your decision to go deliberate on guil t or innocence.” Defense counsel further objected that the State’s argument is “outside the four parameters for acceptable closing argument.” The trial court replied, “Please move on.” On appeal, Appellant argues that the State’s argument was outside t he realm of proper jury argument because t he “ prose cutor was informing the jury a ‘guilty’ verdict was a forgone conclusion; and . . . causing them to ponder punishment, which they were already tol d, by the
court not to consider during their deliberations. ” However, immediately after the challenged argument occurred, the trial court instructed the jury that it is solely responsible for determining guilt or innocence. The State then reiterated that it was the jury’s responsibility to make that
decision. In the jury charge, the trial court also included the following instructions:

All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt.

. . .
The fact that a person has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial.

. . . The presumption of innocence alone is sufficient to acquit the defendant, unless the jurors are satisfi ed beyond a re asonable doubt of the defendant’ s guilt after careful and impartial consideration of all the evidence in the case.

. . . In the event you have a reasonable doubt as to the defendant’s guilt after considering all the evidence before you, an d these in structions, you will acquit the def endant and say by your verdict “Not guilty.”

We construe the challenged argument as nothing more than an emphasis of the jury’s responsibility to determine whether Appellant was guilty or not. Moreover, the t rial court’s
instructions to the jury are generally considered sufficient to cure any improprieties that occur at trial. Gamboa v. State , 296 S.W.3d 574, 580 (Tex. Crim. App. 2009). The record does not indicate that the State’s argument was of such a nat ure that the jury could not ignore it and fairly examine the evidence in arriving at its verdict. See id . This is particularly true in light of the trial court’s instructions that a determination of guilt or innocence was within the jury’s sole6

discretio n. W e presume that the jury followed the trial court’s instructions. See id

. For these reasons, we conclude that the trial court properly denied Appellant’s motion for mistrial. We
overrule issue three.

D ISPOSITION Having overruled Appellant’s three i ssues, we affirm the trial court’s judgment.

G REG N EELEY Justice

Opinion delivered March 15 , 2017. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

( DO NOT PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MARCH 15 , 2017

NO. 12

- 16

- 00094

- CR

SAMUEL RICARDO ANAYA , JR.,

Appellant V. THE STATE OF TEXAS, Appellee

Appeal from the 238th District Court of Midland County, Texas (Tr.Ct.No. CR45995)

T HIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed , and that this decision be certified to the court
below for observance.

Greg Neeley , Justice

. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.