Opinion filed May 23, 2013

In The

Eleventh Court of Appeals __________

No. 11-11-00154-CR

________

FELIPE HERNANDEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 106th District Court

Dawson County, Texas

Trial Court Cause No. 10-6963

M E M O R A N D U M O P I N I O N

The jury convicted Felipe Hernandez of the state jail felony offense of 

evading arrest. The jury assessed Appellant’s punishment at confinement for one 

year and a $1,000 fine. The trial court sentenced Appellant accordingly. We 

affirm.
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The Charged Offense

A person commits the offense of evading arrest or detention if he 

intentionally flees from a person he knows is a peace officer attempting to arrest or 

detain him. TEX. PENAL CODE ANN. § 38.04(a) (West Supp. 2012). In this case, 

the indictment alleged that, on or about November 30, 2009, Appellant “did then 

and there while using a vehicle, intentionally flee from Gerardo Ornelas, a person 

the said [Appellant] knew was a peace officer who was attempting lawfully to 

arrest and detain the said [Appellant].”

Issue on Appeal

In his sole issue, Appellant challenges the sufficiency of the evidence to 

support his conviction.

Sufficiency of the Evidence

We review the sufficiency of the evidence under the standard of review set 

forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 

893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. 

App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we examine all of 

the evidence in the light most favorable to the verdict and determine whether, 

based on that evidence and any reasonable inferences from it, any rational trier of 

fact could have found the essential elements of the offense beyond a reasonable 

doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. 

App. 2010). In conducting a sufficiency review, we are required to defer to the 

jury’s credibility and weight determinations because the jury is the sole judge of 

the witnesses’ credibility and the weight to be given their testimony. Merritt v. 

State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012); Brooks, 323 S.W.3d at 899.

On November 30, 2009, Lamesa Police Officer Gerardo Ornelas was on 

duty as a patrol officer. He was in a marked patrol car that was equipped with a 

DVD recorder. Officer Ornelas had the recorder turned on while he worked his 
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shift. At about 11:30 p.m., Officer Ornelas traveled west on South 8th Street.

Officer Ornelas testified that he first observed Appellant as Appellant traveled east 

in the 1600 block of South 8th Street. The speed limit in that area was thirty miles 

per hour. Officer Ornelas said that his radar equipment showed that Appellant was 

driving thirty-seven miles per hour. The DVD recorder in Officer Ornelas’s patrol 

car recorded the incident that involved Appellant. The recording contained video 

but not audio. The DVD of the incident was admitted into evidence.

Officer Ornelas decided to stop Appellant for speeding. As is shown in the 

DVD of the incident, Officer Ornelas activated his emergency lights when 

Appellant passed by the patrol car. Officer Ornelas turned his patrol car around 

and followed Appellant. Appellant did not stop his vehicle. As Appellant 

approached South Bryan, he turned on his right turn signal, stopped at the stop 

sign, and then turned south onto South Bryan. Officer Ornelas continued to follow 

Appellant. Officer Ornelas testified that, as he passed Forest Park on South Bryan, 

he activated his sirens. Appellant still did not stop his vehicle. Officer Ornelas 

radioed his sergeant to inform him that he was in pursuit of a driver who would not 

stop. Officer Ornelas testified that Appellant sped up his vehicle to sixty miles per 

hour and, later, to sixty-five miles per hour as the posted speed limits increased to 

those speeds.

Dawson County Deputy Sheriff Michael Holder responded to 

Officer Ornelas’s call for assistance. Deputy Holder testified that he went to South 

Bryan. When he arrived there, Officer Ornelas’s patrol car and Appellant’s vehicle 

were south of his location. Deputy Holder said that Officer Ornelas’s lights and 

sirens were on. Deputy Holder said that he activated his emergency lights and 

sirens. He followed the vehicles and sped up to catch them.

Officer Ornelas testified that Appellant slowed down to take the south “Y,” 

where South Bryan curves into Highway 349, which goes to Midland. 
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Deputy Holder passed Officer Ornelas and Appellant and then drove in front of 

Appellant. Deputy Holder slowed his vehicle down, and in response, Appellant 

slowed down. Officer Ornelas testified that he and Deputy Holder were able to 

“box [Appellant] in” as the road curved into FM 2052. Appellant pulled his 

vehicle over and stopped.

The DVD shows that Officer Ornelas pursued Appellant for about three 

minutes before Appellant stopped. Officer Ornelas’s emergency lights were turned 

on the entire time that he followed Appellant. The DVD also shows that, during 

most of the pursuit, Officer Ornelas’s patrol car was in close proximity to 

Appellant’s vehicle. The DVD further shows that no vehicles were in between 

Appellant’s vehicle and Officer Ornelas’s patrol car.

After Appellant stopped, the officers went to Appellant’s driver’s side door. 

Officer Ornelas testified that he and Deputy Holder commanded Appellant to get 

out of his vehicle but he would not. The officers pulled Appellant out of the 

vehicle, put him on the ground, and handcuffed him. The officers did not find any 

weapons, drugs, or alcohol in Appellant’s possession. Appellant did not have any 

active warrants.

According to Officer Ornelas, Appellant said that he knew the patrol car was 

behind his vehicle. Officer Ornelas testified that he asked Appellant why he did 

not stop his vehicle and that, in response, Appellant said that “[he] didn’t think 

anything of it.” Appellant also told Officer Ornelas that he was going to Midland.

Appellant testified that, on the night in question, he was at his mom’s house 

in Lamesa and then left her house to go to Midland to see his cousins. Appellant 

said that he drove on South 8th Street toward Bryan Avenue. He said that he did 

not see any officers or patrol car lights as he traveled on South 8th Street. 

Appellant testified that he first saw patrol car lights when he got to the stop sign at 

the end of South 8th Street. He said that he turned right from South 8th Street onto 
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Bryan Avenue. Appellant testified that, at that time, the officer turned on the “loud 

horn.” Appellant said that he did not believe that he had done anything wrong. He 

said that the officer was way behind him. Appellant testified that he believed the 

officer was making a service call. Appellant said that he did not intentionally flee 

from any officer and that he would have stopped had he known that 

Officer Ornelas was trying to stop him.

Appellant testified that he passed the “Y” before he saw the deputy. 

Appellant said that he knew he was being stopped when the deputy slowed down 

in front of him. He said that he started to stop his vehicle as soon as he saw the 

deputy’s brake lights because he did not want to hit the deputy’s vehicle. 

Appellant said that he turned on his signal light and stopped.

The DVD was consistent with Officer Ornelas’s testimony. The evidence 

showed that, in the darkness of night, Officer Ornelas followed Appellant for about 

three minutes with his flashing emergency lights activated. Officer Ornelas’s 

sirens were on during much of his pursuit of Appellant. However, Appellant did 

not stop his vehicle until the officers boxed him in on the highway. Appellant 

testified that he did not intentionally flee from the officers. As the sole judge of 

the credibility of the witnesses, the jury was free to disbelieve Appellant’s 

testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). Viewing 

all the evidence in the light most favorable to the verdict, we conclude that a 

rational trier of fact could have found beyond a reasonable doubt that Appellant 

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

to detain him. Therefore, the evidence is sufficient to support Appellant’s 

conviction. Appellant’s sole appellate issue is overruled.
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This Court’s Ruling

We affirm the judgment of the trial court.

TERRY McCALL

JUSTICE

May 23, 2013

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

Panel consists of: Wright, C.J.,

McCall, J., and Willson, J.