## NO. 12

- 22

- 00014 -CR

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

DRASHAYDRIAN MONTELL HUNTER , APPELLANT

V.

THE STATE OF TEXAS , APPELLEE §

§

§ APPEAL FROM THE 7TH

JUDICIAL DISTRICT COURT

SMITH COUNTY, TEXAS

M EMORANDUM OPINION Drashaydrian Montell Hunter appeals his conviction for escape while arrested. In three issues, he contends the evidence is insufficient to support his conviction a nd that certain items were erroneously included in the bill of costs. We modify and affirm as modified.

B ACKGROUND Officer Santos Rodriguez of the Van Police Department was dispatched to a motor
vehicle accident on Interstate 20 in Van Zandt County on November 30, 2017. When he arrived,
a vehicle was crashed into the median ; however, no one was in or near the veh icle. Approximately twenty minutes later, Rodriguez was dispatched to an attempted carjacking at The Farmhouse Restaurant in Van.
When he a rrived, Rodriguez spoke with “Ms. Townsend,” a cook at the restaurant. She told him that she was leaving at approximately 5:00 a.m. when she was approached by a black male wearing a hoodie and pajama pants and who had facial hair. The man demanded her ca r keys, but she refused. The man persisted until she hit the panic button on her key fob. The man also brandished “some type of weapon” that was “shiny.” Rodriguez and other officers searched the area but were unable to find the suspect.2 Officer Guy Mc Kee came on duty at 6:00 a.m., and Rodriguez informed him about the carjacking and gave him a description of the suspect. McKee later received information about a suspicious individual , who matched the suspect ’s description, at the Love’s Truck Stop.
Acc om panied by other officers, McKee approached the suspect and pulled him from his vehicle. The suspect was later id entified as Appellant. Appellant was placed on the ground and
handcuffed. During questioning by McKee, Appellant was placed in the back of McKee’s police car. Appellant requested medical attention for an injury to his face, and McKee called for an
ambulance. After the ambulance arrived, McKee placed Appellant in zip tie handcuffs because the
ambulance does not allow metal cuffs . McKee fo llowed the ambulance to the hospital in Tyler and waited for Appellant to receive medical attention. After re ceiving medical attention, Appellant was again placed into handcuffs and transported outside in a wheelchair. While outside, Appellant stood up and ran away. McKee was unable to find him. Appellant avoided capture again on March 7, 2018, in Jacksonville, Texas. He was arrested on March 16, 2018, at a home in Jacksonville after being found in a closet. Appellant was charged by indictment with es cape while arrested for the escape from McKee outside the hospital. Appellant pleaded “not guilty,” and the m atter proceeded to a jury
trial. Following trial, the jury found Appellant “guilty” as charged in the indictment. And after the punishment ph ase , the jury assessed punishment at twenty years of imprisonment and a $10,000 fine. This appeal followed.

E VIDENTIARY S UFFICIENCY In his first issue, Appellant contends the evidence is insufficient to support his conviction. Specifically, he urges th e State failed to prove that he was under arrest at the time of his escape.
Standard of Review and A pplicable Law
The Jackson v. Virginia 1 legal sufficiency standard is the only standard that a reviewing court should apply in determining whether the evide nce is sufficient to support each element of a criminal offense that the state is required to prove beyond a reasonable doubt. See Brooks v.
State , 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Legal sufficiency is the constitutional

1 404 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).3 minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a
criminal conviction. See Jackson , 443 U .S. at 315

– 16, 99 S. Ct. at 2786

– 87; see also Escobedo
v. State , 6 S.W.3d 1, 6 (Tex. App.

– San Antonio 1999, pet. ref’d). The standard for reviewing a legal s uff iciency challenge is whether any rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt. See Jackson , 443 U.S. at 319, 99 S. Ct. at 2789; see also Johnson v. State , 871 S.W.2d 183, 186 (Tex. Crim. App. 19 93) . The evidence is examined in the light most favorable to the verdict. See Jackson , 443 U.S. at 319, 99 S. Ct. at 2789; Johnson , 871 S.W.2d at 186. A jury is free to believe all or any part of a witness’s testimony or disbelieve all or any part of that te stimony. See Lee v. State , 176 S.W.3d 452, 458 (Tex. App.

– Houston [1st Dist.] 2004), aff’d , 206 S .W.3d 620 (Te x. Crim. App. 2006). A successful legal sufficiency challenge will result in rendition of an acquittal by the reviewing court. See Tibbs v. Flo rid a , 457 U.S. 31,
41

– 42, 102 S. Ct. 2211, 2217

– 18, 72 L. Ed. 2d 652 (1982).
Circumstantial evidence is as proba tive as direct evidence in establishing guilt, and circumstantial evidence alone can be sufficient to establish guilt. Rodriguez v. State , 521 S.W .3d 822, 827 (Tex. App.

– Houston [1st Dist.] 2017, no pet.) (citing Sorrells v. State , 343 S.W.3d 1 52, 155 (Tex . Crim. App. 2011)). Each 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. See Hooper v. State , 214 S.W .3d 9, 13 (T ex. Crim. App. 2007). Juries are permitted to draw multiple reasonable inferences as long as each inference is supported by the evidence presen ted at trial. Id

. at 15. Juries are not permitted to reach conclusions based on mere speculation or factually uns upported inferences or presumptions. Id

. An inference is a conclusion reached by considering other facts and deducing a logical consequence fro m t hem, while spe culation is mere theorizing or guessing about the possible meaning of facts and evidence present ed. Id

. at 16. The sufficiency of the evidence is measured against the offense as defined by a hypothetically correct jury charge. See Malik v. S tate , 953 S.W.2 d 234, 240 (Tex. Crim. App. 1997). Such a charge would include one that “accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict
the State’s theori es of liability, and adequately describes the particular offense for which the
defendant is tried.” Id

.4 To prove the offense of escape, as provided by Section 38.06(a)(1) of the Texas Penal Code, the State must show that a person (1) escaped (2) from custo dy (3) after havi ng been arrested for, lawfully detained for, charged with, or convicted of an offense. T EX

. P ENAL C ODE

. A

NN . § 38.06(a)(1) (West 2016); see Medford v. State , 13 S.W.3d 769, 772 (Tex. Crim. App. 2000) (citing Henderson v. State , 600 S.W.2d 78 8, 789 (Tex. Crim. App. 1979)). In Medford , the Texas Court of Criminal Appeals determined that a logical reading of the escape statute, when compared to the evading arrest statute, is that the legislature intended that an arrest must be complete before an individual can be charged with escape. Medford , 13 S.W.3d at 772. The Penal Code does not define the term “arrest,” and Article 15.22 of the Code of Criminal Procedure only defines arrest as “being taken into custody.” Id

. Thus, “[f]or purposes of the

e sc ape statute, an ‘arrest’ is complete when a person ’ s liberty of movement is successfully
restricted or restrain ed.” Id

. at 773. This may be achieved by “an officer ’ s physical force or the suspect ’ s submission to the officer ’ s authority” and the arrest is o nly complete if “a reasonable person in the suspect ’ s position would have understood the situation to constitut e a restraint on freedom of movement of the degree which the law associates with formal arrest.” Id

. (quoting
United States v. Corrall

- Franco , 84 8 F.2d 536, 400 (5th Cir. 1988)). The escape statute applies to those circumstances where the officers have, a t one point prior to the escape, successfully restrained or restricted a suspect to the point that it “amounted to an arrest.” Warner v. State , 257 S.W.3d 243, 247 (Tex. Crim. App. 2008) ; Nix v. State , No. 11 -19-00404- CR, 2021 WL 5279410, at *3 (Tex. App.

— Eastland Nov. 12, 2021, no pet.) (mem. op., not designated by publication). Analysis Appellant contends he was not under arrest at the time he f led law enforcement. He argues he “was merely in the process of being arrested and that the sheriff’s department was unable to complete the arr est by successfully restricting or restraining [his] liberty of
movement.” 2

2 We feel we must point out that Appellant’s brief fact

- intensive first issue lacks record references completely. See T EX

. R. A PP

. P. 38.1 (“Argument. The brief must contain a clear and concise argument for the contentions made, with appropriate citations t o authorities and to the record ”) (emphasis added). An appellant waives an issue on appeal if he does not adequately brief that issue by not providing supporting arguments, substan tive analysis, and appropriate citations to authorities and to the record. C haves v. State , 630 S.W.3d 541, 555 (Tex. App.

– Houston [1st Dist.] 2021, no pet.) (citin g Lucio v. State , 351 S.W.3d 878, 896

– 97 (Tex. Crim. App. 2011); Busby v. State , 253 S.W.3d 661, 673 (Tex. Crim. App. 2008); Cardenas v. State , 30 S.W.3d 384, 393 (Tex. Crim. App. 2000) (defendant inadequately briefed complaint where he neglected to present argument with citation to5 McKee testified that Rodriguez told him about an attempted carjacking (aggr avated robbery) at The Farmhouse R estaurant in Van on November 30, 2017. H e later received
information about a s uspicious person with facial injuries at th e Love’s Tr avel Stop next to the

restaurant. McKee spoke wi th an attendant at the Love’s and the de scription of the suspicious person matched the description of the aggravated robbery suspect. The suspect, Appel lant, was
in the front passenger’s seat of a vehicle . McKee waited for backup

. O fficers surrounded th e vehicle , and approached Appellant. McK ee pulled Appellant out of the vehicle, placed him on the ground, placed him in hand restraints, and checked for weap ons. A small, silver handgun was found in Appellant’s pocket. McKee testified that he would have transported Appellant to the county jail at t hat time, but Appellant’s facial injuries required medical attenti on. Therefore,
an ambulance was called.
When the ambulance arrived, McKee placed Appellant in “zip tie handcuffs” instead of
metal cuffs per th e ambulance policy. McKee followed the ambul ance to the hospital , stayed at the hospital while Appellant was t reated by medical personnel , and placed Appella nt in metal
handcuffs b efore leaving the emergency room . He intended to transport Appellant to th e Van
Zandt County Jail because he was “u nder arrest” for “robbery [and] unlawful possession of a
firearm b y a felon.” Appellant claimed to be unable to walk, so he was provided a wheelchair. While a nurse push ed Appellant to McKee’s vehicle, Appellant j umped up and ran away. McKee attempted t o chase him on foot, and then in his vehicle , but Appellant had al ready escaped.
McKee admitted that he never to ld Appellant that he was under arrest. However, he
stated that Appellant was in fact under arrest and that any reasonable person would realize that
under the circumstances. McKee’s bodycam video was admitte d into evidence. On the video, Appellant can b e heard asking officers, “What am I going to jail for?” McKee respond ed , “You ain’t going to jail

appro priate authority)); see also Ray v. State , 176 S.W.3d 544, 553 n.7 (Tex. App.

– Houston [1st Dist.] 2004, pet. ref’d). As the Texas Court of Criminal Appeals has emphasized, an appellate court has no obligation to construct and compose issues, facts, and arg uments with appropriate citations to authorit ies and the re cord for the appellant. See Wolfe v. State , 509 S.W.3d 325, 343 (Tex. Crim. App. 2017); Busby , 253 S.W.3d at 673. A brief that fails to apply the law to the facts does not comply with Texas Rule of Appellate Procedure 38.1 and presents nothin g for our revi ew. See Swearingen v. State , 101 S.W.3d 89, 100 (Tex. Crim. App. 2003). However, because we are able to construe Appellant’s arguments in this case, we will consid er them in the interest of justice

.6 yet .” Then he told Appellant that he was “n ot going anywhere until [he] got a positive phot I.D.”
and not to lie to him “or it will be an extra charge.” Ap pellant also testified at trial. He explained that he had injuries to his face and head
when McKee fi rst approached him

. Appellant testified that , prior to being placed in the ambulance, he was placed in the back of McKee’s police car. He claimed he was never told he
was under arrest. Appellant stated that he was subsequently transported to the hospita l via
ambulance , but he claimed McKee was not w ith him at the hospital

. He stated that he was “shocked” and “traumatized” because he “had just had a wrec k.” He told the jury that the injuries to his face happened when he crashed a stolen car. Appellant further claimed that he woke up outside w ith a nurse behind him and he was in a wheelchair. He testified, “When I got outside, I just got out of the whee lchair, I looked around, and I just walked off.” He claimed he
was not handcuffed. He later stated t hat he “hacked sawed” the cuffs off himse lf, bu t he was unsure how he became handcuffed. Appellant admitted to attempting to steal a vehicle from Ms. T ownsend in Van. H e denied hav ing the pistol and claimed a friend gave it to him afterward. He furthe r denied knowing that he was under arrest even after he had been handcuffed and placed in the back of a police car. Appellant testified that the entirety of McKee’s testimony was false. On appeal, Appellant contends the evidence is insufficient to prove that he was under
arrest at the time he f led fr om police. However, as the sole judge of the weight and credibility of the evidence, the jury was entitled to discredit Appellant’s explanations and credit McKee’s testimony. See Brooks , 323 S.W.3d at 899. In choosing to believe McKee, the jury co uld

re asonably determine that a reasonable person in Appellant’s position would have understood the
situation to constitute a restraint on freedom of movement to the degree which the law associates
with a formal arr est. See Medford , 13 S.W.3d at 773. App ellant had been handcuffed at least three times, placed in the back of a police car, accompanied by a police offi cer to the hospital , and instructed that he was being charged with at least one crime. See Sample v. State , 292 S.W.3d 135, 136

- 37 (Tex. Ap p.

— Houston [14th Dist.] 20 08 , pet. ref’d) (mem. op.) ; Castillo v.
State , 404 S.W.3d 557, 560

- 63 (Tex. App.

— Houston [1st Dist.] 2010, pet. ref’d) (mem. op.) ; Martinez v. State , No. 07

- 03

- 0407

- CR, 2005 WL 2548594, at *1

- 2 (Tex. App.

— Amarillo Oct. 12, 2005, no pet.) (mem. op., not de signated for publication).7 Therefore, viewing the evidence in the light most favorable to the verdict, we concl ude that a rational jury could have found that Appellant committed the offense o f escape while
arrested. T EX

. P ENAL C ODE

. A NN . § 38.06(a)(1). We overrule Appellant’s first issue.

C OSTS In his second and third issues, Appellant alleges items in the bil l of costs were erroneously included; specifically, that the fine assessed should not be included in the bill of costs (issue two) and the Lo cal Consolidated Fee on Conviction of Felony does not apply to his case (issue three).
The Local Consolidated Fee on Conviction of Felony applies only to defendants who are convicted of offenses committed on or after January 1, 2020. See Hayes v. State , No. 12-20-
00222- CR, 2021 WL 1418400, at *2 (Tex. App.

— Tyler Apr. 14, 2021, no pet.) (mem. op., not designated for p ublication) (citing T EX

. L OC

. G OV ’ T C ODE A NN . § 134.101 (West 2021)). Section
13 4.101 assesses an additional $105 fee for a person who is convic ted of a felony. See T EX

. L OC

. G OV ’ T C ODE A NN

. § 134.101(a). That fee is to be allocated to the following specif ic accounts and funds: the clerk of the court account, the county records management and preservation fund, the county jury fund, the courthouse security fund, the county and district court technology fund, and the county specialty court account. See id

. § 134.101(b). In the instant case, the commission date for the offense is November 30, 2017

. The judgment of conviction reflects that t he trial c ourt assessed $251.50 in court costs. The judgment
includes a document identified as “Attachment A Order to Wit hdraw Funds,” which states that Appellant has incurred “[c]ourt costs, fees and/ or fines and/or restitution” in the amount of $251.50. The certi fied bill of costs itemizes the court costs imposed, which total $10, 251 .50 with a $10, 251 .50 balance remaining. The certified bill of costs includes the following costs assessed pursuant to Section 134.101: $40.00 Clerk of the Court; $4.00 County and Dis trict Court Technology Fund; $1.00 County Jury Fund; $25.00 County Records Management and Preservation; $25.00 County Specialty Court Account; and $10.00 Courthouse Security Fund.
See id

. The sum of these costs is $105.00. Because the offense in this case was committed before January 1, 2020, Appellant is not obligated to pay the “Local Consolidated Fee on Conviction of Felony.” See Hayes , 2021 WL 1418400, at *2. Accordingly, we will modify the trial court ’ s judgment and Order to Withdr aw to reflect the removal of these fees. See T EX

. R. A PP

. P.8 43.2(b); Reyes v. State , 324 S.W.3d 865, 868 (Tex. App.

–Amarillo 2010, no pet.). Appellant ’ s third issue is sustained.
The bill of costs also includes the $10,000 fine imposed by the trial court. A bill of costs

mus t be in writing and contain “the items of cost.” T EX

. C ODE C RIM

. P ROC

. A NN

. art. 103.001 (West 2018 ). Fines are punitive and intended to be part of the convicted defendant ’ s sentence.
See Arms trong v. State , 340 S.W.3d 759, 767 (Tex. Crim. App. 2011). Court costs, however, are “compensatory in nature” and are “a non

- punitive recoupment of the costs of judicial resou rces expended in connection with the trial of the case.” Id

. ; Williams v. State , 495 S.W.3d 583, 590 (Tex. App.— Houston [1st Dist.] 2016), pet. dism ’d , 2017 WL 1493488 (Tex. Apr. 26, 2017). Accordingly, fines are fundamentally different than court costs. Thus , we reform the bill of costs to delete the fine. See Williams , 495 S.W.3d at 591. Appellant remains obligated to pay the $10,000 fine reflec ted in the judgment of conviction. See T EX

. R. A PP

. P. 43.2(b). We sustain Appellant’s second issue.

D ISPOSITIO N Having sustained Appellant’s third issue, we modify the trial court’s judgmen t and withdrawal order, along with the corresponding bill of costs, to reflect that the amount of court costs is $146.50. And having sustained his second issue, we likewise mo dify the bill of costs to delete the fine. Having overruled Appellant’s first i ssue, we affirm the judgment as modified

.

J AMES T. W ORTHEN Chie f Justice
Opinion delivered August 17, 2022. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

( DO NOT PUBLISH )

## COURT OF APPEALS

T WELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

AUGUS T 17, 2022

NO. 12-22-00014- CR

DRASHAYDRIAN MONTELL HUNTER , Appellant V. THE STATE OF TEXAS , Appellee

Appeal from the 7th Dist rict Court
of Smith County, Texas (Tr.Ct.No. 007-1837-20)

THIS CA USE came to be heard on the appellate record and the brief s filed herein, and the same being considered, it is the opinion of this court that the judgment and withdrawal order, alon g with t he corresponding bill of costs of the court below , should be modified and as modified, affirmed. I t is therefore ORDERED, ADJ UDGED and DECREED that the judgment and withdrawal order, along with the corresponding bill of costs of the court below , be modif ie d to reflect that the amount of court costs is $146.50 and the fin e in the bill of costs be deleted ; in all other respects th e judgment of the trial court , including the fine of $10,000.00, is affirmed ; and that this decision be certified to the court below for observance. James T. Worthe n, Chief Justice. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.