NO. 07-08-00319-CR 

IN THE COURT OF APPEALS 

FOR THE SEVENTH DISTRICT OF TEXAS 

AT AMARILLO 

PANEL A 

JUNE 7, 2010 

DAVIN EDWARD FASSAUER, APPELLANT 

v. 

THE STATE OF TEXAS, APPELLEE 

 FROM THE COUNTY COURT AT LAW NO 1 OF POTTER COUNTY; 

NO. 120,036; HONORABLE W. F. (CORKY) ROBERTS, JUDGE 

Before CAMPBELL and HANCOCK and PIRTLE, JJ. 

MEMORANDUM OPINION 

Appellant Davin Edward Fassauer was charged by information with the offense 

of evading arrest or detention.1

 A jury found him guilty of the offense and the court 

sentenced him to 180 days confinement in the county jail. Contending the evidence 

was legally and factually insufficient to support his conviction, appellant appeals. We 

will affirm. 

 1

 Tex. Penal Code Ann. ' 38.04(a),(b) (Vernon 2003). Appellant was charged 

under the former version of the law which made its violation a Class B misdemeanor in 

the absence of enhancement factors not present here. 
2 

Discussion 

Through two issues appellant argues the evidence was legally and factually 

insufficient to establish that police officers were attempting to lawfully arrest or detain 

him. 

The offense of evading arrest or detention consists of the following elements: 1) 

a person, 2) intentionally flees, 3) from a peace officer, 4) with knowledge he is a peace 

officer, 5) who is attempting to arrest or detain him, and 6) the attempted arrest or 

detention is lawful. Tex. Penal Code Ann. ' 38.04(a) (Vernon 2003). See Rodriguez v. 

State, 578 S.W.2d 419, 419 (Tex.Crim.App. 1979). Material to the argument of 

appellant is the sixth element requiring proof beyond a reasonable doubt that the arrest 

or detention evaded was lawful. In general, absent extraordinary circumstances an 

arrest supported by probable cause or a warrant is lawful. Haight v. State, 103 S.W.3d 

498, 507 (Tex.App.BSan Antonio 2003), rev=d on other grounds, 137 S.W.3d 48 

(Tex.Crim.App. 2004). 

When conducting a legal sufficiency review, we view the evidence in the light 

most favorable to the verdict to determine whether a rational fact-finder could have 

found each element of the offense beyond a reasonable doubt. Swearingen v. State, 

101 S.W.3d 89, 95 (Tex.Crim.App. 2003); Conner v. State, 67 S.W.3d 192, 197 

(Tex.Crim.App. 2001) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 

L.Ed.2d 560 (1979)). The trier of fact is the sole judge of the weight and credibility of 

the evidence. Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). 

Accordingly, when performing a legal sufficiency review, we are not free to re-evaluate 
3 

the weight and credibility of the evidence and substitute our judgment for that of the 

fact-finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999). Rather, we 

Adetermine whether the necessary inferences are reasonable based upon the combined 

and cumulative force of all the evidence when viewed in the light most favorable to the 

verdict.@ Hooper v. State, 214 S.W.3d 9, 16-17 (Tex.Crim.App. 2007). We must 

presume that the fact-finder resolved any conflicting inferences in favor of the 

prosecution and defer to that resolution. Jackson, 443 U.S. at 326, 99 S.Ct. at 2793; 

Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007). 

If, based on all the evidence, a reasonably-minded jury must necessarily 

entertain a reasonable doubt of the defendant's guilt, due process requires that we 

reverse and order a judgment of acquittal. Swearingen, 101 S.W.3d at 95, (citing

Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App. 1992)). 

A factual sufficiency review of the evidence is Abarely distinguishable@ from the 

legal sufficiency review under Jackson v. Virginia. Marshall v. State, 210 S.W.3d 618, 

625 (Tex.Crim.App. 2006). A factual sufficiency review considers whether the evidence 

supporting guilt, though legally sufficient, is so weak that the jury=s verdict seems clearly 

wrong and manifestly unjust, or evidence contrary to the verdict is such that the jury=s 

verdict is against the great weight and preponderance of the evidence. Id.; Watson v. 

State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006); Johnson v. State, 23 S.W.3d 1, 

11 (Tex.Crim.App. 2000). In a factual sufficiency review, we again consider all the 

evidence, but now in a neutral light. Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d 

at 414. Although an appellate court=s authority to review factual sufficiency permits the 
4 

court to disagree with the fact-finder=s determinations, even to a limited degree those 

concerning the weight and credibility of the evidence, the appellate court must accord 

them due deference. Marshall, 210 S.W.3d at 625; Johnson, 23 S.W.3d at 9. When 

there is a conflict in the evidence, to find it factually insufficient we must first be able to 

say, with some objective basis in the record, that the great weight and preponderance of 

all the evidence contradicts the jury=s verdict. Watson, 204 S.W.3d at 417. 

We turn now to the evidence. On July 30, 2007, Amarillo police officers Shelton 

and Hawley went to a specific city residence to look for a Awanted individual.@ They had 

previously received information of appellant=s possible presence at this location. 

Shelton identified appellant as the person he sought. According to Hawley, he and 

Shelton went to the residence in search of a Awanted person@ named Davin Fassauer. 

To establish identification, the officers possessed a photograph of appellant. Hawley 

was familiar with serving arrest warrants and that the accused sometimes flee. The 

officers had information that appellant might be a flight risk. 

Shelton and Hawley wore blue police uniforms with visible badges and the word 

Apolice@ in four inch letters imprinted across the back. On arrival in the neighborhood, 

they secluded their patrol car and set up surveillance of the residence. In so doing, they 

observed a male, whom they believed was appellant, in front of the residence arguing 

with a female. She left in a car and it appeared the male might leave in a pickup. 
5 

Amarillo police officers Martinez and Chappell were also in the area of the 

residence in a patrol car driven by Chappell. Martinez was in uniform.2

 He was asked to 

meet Shelton and Hawley at the residence Aon an arrest warrant they had.@ On crossexamination, Hawley acknowledged that he did not know if Aa warrant in this case was 

sealed or not.@ Shelton called Martinez and Chappell requesting they go to the front 

door, identify the male as appellant, and place him under arrest. Martinez had 

previously seen a photograph of appellant and knew for whom they were looking. 

According to Martinez, as their patrol car entered the driveway he exited the passenger 

side before the vehicle stopped and commanded appellant to Acome here.@ Instead, 

appellant fled on foot and Martinez gave chase commanding, Astop police.@ Appellant 

entered the backyard of a neighborhood residence and emerged in Hawley=s presence 

riding a Akid=s bicycle.@ When Hawley commanded appellant to get on the ground he 

slammed the bicycle down and continued running. Hawley attempted to stop appellant 

with a taser but was not successful. He ordered appellant to stop but appellant 

disobeyed and continued his flight. According to a civilian witness, appellant screamed, 

A>somebody help me. They=re after me.=@ When appellant entered a street and swerved 

to avoid a vehicle, Hawley overtook him and physically subdued him. Martinez 

identified appellant as the person he chased. According to Martinez, the evading 

incident lasted ten to fifteen minutes. Appellant sustained a cut which required stitches 

at a local hospital. Police then transported him to detention. 

 2

 Officer Chappell did not testify and the record contains no evidence of his 

attire. 
6 

Appellant contends the trial court sustained a hearsay objection to the testimonial 

statement of Martinez that he was asked to meet Shelton and Hawley “on an arrest 

warrant they had.” Appellant appears to contend that without the strength of the 

objected-to testimony, the evidence is legally and factually insufficient to support a 

finding the arrest or detention he evaded was lawful. For several reasons, we must 

disagree. First, in a legal sufficiency review, we consider all of the evidence the jury 

was permitted to consider, whether rightly or wrongly. Alexander v. State, 866 S.W.2d 

1, 3 (Tex.Crim.App. 1993). 

Second, review of the record requires the conclusion Martinez’s statement must 

be considered also in our factual sufficiency review. The testimony in question was 

elicited through the following exchange: 

Q. [prosecutor]: Why did you go to [the residence]? 

A. [Martinez]: I was asked to meet Corporal Shelton and Corporal Hawley on an 

arrest warrant that they had. They asked that I meet them because 

they were concerned that the person that was wanted wouldB

Defense Counsel: I=ll object to their concerns being hearsay. 

The Court: Sustained. 

A[T]he purpose of lodging a timely and specific objection is to inform the trial court 

of the basis of the objection and to give the court an opportunity to rule on the specific 

objection as the evidence is introduced.@ Sattiewhite v. State, 786 S.W.2d 271, 283 

(Tex.Crim.App. 1989). A specific objection also allows Aopposing counsel an 
7 

opportunity to remove the objection or supply other testimony.@ Maynard v. State, 685 

S.W.2d 60, 65 (Tex.Crim.App. 1985). When evidence contains both admissible and 

inadmissible components, a proper objection must point to the inadmissible component. 

Celotex Corp. v. Tate, 797 S.W.2d 197, 206 (Tex.App.BCorpus Christi 1990, writ 

dismissed). This is precisely what appellant did by specifically focusing his objection on 

the concerns conveyed to Martinez by Hawley and Shelton. We cannot construe 

appellant’s objection as extending to Martinez=s explanation of why he was at the 

residence. 

Moreover, even assuming arguendo appellant=s objection included Martinez=s 

entire response, once uttered the testimony was before the jury. And appellant made 

no motion to strike or request for an instruction to disregard. The testimony was 

therefore available for the jury’s consideration. “Where an objection is made and 

sustained as to testimony which has been heard by the jury the testimony is before the 

jury unless the jury is instructed to disregard it.” Prudential Ins. Co. v. Uribe, 595 

S.W.2d 554, 564 (Tex.Civ.App.--San Antonio 1979, writ ref’d n.r.e); Johnson v. State,

925 S.W.2d 745, 750 (Tex.App.--Fort Worth 1996, pet. refused); Rodriquez v. State,

903 S.W.2d 405, 409-10 (Tex.App.--Texarkana 1995, pet. refused) (citing Prudential 

Ins. Co.). See also Battles v. Adams, 415 S.W.2d 479, 483 (Tex.Civ.App.BAustin 1967, 

writ ref=d n.r.e.) (A[s]ince the objection to this testimony was made after its admission 

and no motion to strike having been made, the objection was waived and the testimony 

was before the court for all that it is worth@); Poole v. State Highway Department, 256 

S.W.2d 168, 172 (Tex.Civ.App.BFort Worth 1953, writ dismissed) (Atestimony before the 

jury before objection thereto is made and sustained is still before them until they are 
8 

instructed not to consider it@). Accordingly, we consider Martinez’s testimony he was 

asked to meet Shelton and Hawley “on an arrest warrant they had” in our evaluation of 

both the legal and factual sufficiency of the evidence. 

Having reviewed the entire record, we find a rational trier of fact could have 

reasonably concluded that on July 30 police officers Hawley, Shelton, and Martinez 

were in uniform and drove to the residence in marked patrol cars. They possessed a 

warrant for the arrest of appellant and were at the residence to take him into custody. 

When appellant saw Martinez and the patrol car driven by Chappell he fled on foot and 

did not stop until physically subdued despite commands to stop. 

When viewed in the light most favorable to the verdict, the evidence is legally 

sufficient to support the verdict of the jury. Additionally, a neutral review of all the 

evidence demonstrates neither that the proof of guilt is so weak nor that conflicting 

evidence is so strong as to render the jury's verdict clearly wrong and manifestly unjust. 

We overrule appellant=s two issues. 

Conclusion 

Having overruled appellant=s two issues, we affirm the judgment of the trial court. 

 

 

James T. Campbell 

 Justice 

Do not publish.