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 ch arged 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 conf inement in the county jail. Contending the evidence was legally and factually insufficient to suppor t his conviction, appel lant 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 fact ors not present here.2 Discussion Through two issues appellant argues the evidence was legally and factually insufficient to establish that police officers we re 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 pr oof beyond a reasonable doubt that the arrest or detention evaded was lawful. In general , absent extraordinary circumstances an arrest supported by probable caus e or a warrant is lawful. Haight v. State, 103 S.W.3d 498, 507 (Tex.App.

B San 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 verd ict to determine whether a ra tional fact-finder could have found each element of the offens e 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 t he 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 sufficien cy review, we are not free to re-evaluate3 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.Ap p. 1999). Rather, we

A determine whether the necessary inferenc es 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 pr ocess 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 A barely 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 sufficien cy review considers whether the evidence supporting guilt, though legally suffici ent, 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 fact ual sufficiency permits the4 court to disagree with the fact-finder = s determinations, even to a limited degree those concerning the weight and cr edibility of the evidence, t he 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 A wanted individual. @ They had previously received information of appellant = s possible presence at this location. Shelton identified ap pellant as the person he sought. According to Hawley, he and Shelton went to the re sidence in search of a A wanted person @ named Davin Fassauer. To establish identification, the officers possessed a p hotograph of appellant. Hawley was familiar with serving arrest warrants and that the accused sometimes flee. The officers had information that appe llant might be a flight risk. Shelton and Hawley wore bl ue police uniforms with visi ble badges and the word

A police @ in four inch letters impr inted across the back. On arrival in the neighborhood, they secluded their patrol car and set up surveill ance of the residence. In so doing, they observed a male, whom they believed was appel lant, 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 Ch appell were also in the area of the residence in a patrol car driven by C happell. Martinez was in uniform. 2 He was asked to meet Shelton and Hawley at the residence A on an arrest warrant they had. @ On crossexamination, Hawley acknowledged that he did not know if A a warrant in this case was sealed or not. @ Shelton called Martinez and Chappe ll 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 A come here. @ Instead, appellant fled on foot and Mart inez gave chase commanding, A stop police. @ Appellant entered the backyard of a neighborhood residence and emer ged in Hawley = s presence riding a A kid = s bicycle. @ When Hawley commanded appellant to get on the ground he slammed the bicycle down and c ontinued running. Hawley a ttempted 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. Appel lant 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 sustai ned a hearsay objection to the testimonial statement of Martinez that he was asked to meet Shelton and Hawley “on an arrest warrant they had.” Appell ant appears to contend that wit hout the strength of the objected-to testimony, the evidence is lega lly 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 su fficiency 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 t he conclusion Martinez’s statement must be considered also in our factual sufficien cy 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 Cor poral Shelton and Cor poral Hawley on an arrest warrant that they had. Th ey asked that I meet them because they were concerned that the person that was wanted would

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

The Court: Sustained.

A [T]he purpose of lodging a ti mely and specific objection is to inform the trial court of the basis of the objection and to give the court an opportuni ty 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 spec ific objection also allows A opposing counsel an7 opportunity to remove the objecti on 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 prop er objection must point to the inadmissible component. Celotex Corp. v. Tate, 797 S.W.2d 197, 206 (Tex.App.

B Corpus Christi 1990, writ dismissed). This is precisely what appellant di d by specifically focusing his objection on the concerns conveyed to Martinez by Ha wley 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 instru ction to disregard. The testimony was therefore available for t he 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 inst ructed to disregard it.” Prudential Ins. Co. v. Uribe , 595 S.W.2d 554, 564 (Tex.Civ.App.--San An tonio 1979, writ ref’d n.r.e); Johnson v. State, 925 S.W.2d 745, 750 (Tex.App.--For t Worth 1996, pet. refused); Rodriquez v. State, 903 S.W.2d 405, 409-10 (Tex.App.--Texar kana 1995, pet. refused) (citing Prudential Ins. Co. ). See also Battles v. Adams, 415 S.W.2d 479, 483 (Tex.Civ.App.

B Austin 1967, writ ref = d n.r.e.) ( A [s]ince the objection to this test imony was made after its admission and no motion to strike having been made, t he 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.

B Fort Worth 1953, wr it dismissed) ( A testimony before the jury before objection thereto is made and sustained is still before them until they are8 instructed not to consider it @ ). Accordingly, we consider Martinez’s testimony he was asked to meet Shelton and Hawley “on an arre st warrant they had” in our evaluation of both the legal and factual su fficiency of the evidence. Having reviewed the entire record, we fi nd a rational trier of fact could have reasonably concluded that on July 30 police o fficers Hawley, Shelton, and Martinez were in uniform and drove to the residence in marked patrol cars. They possessed a warrant for the arrest of appell ant and were at the residence to take him into custody. When appellant saw Martinez and the patrol car driven by Chap pell 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 t hat 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 j udgment of the trial court.

James T. Campbell Justice Do not publish.