IN THE

TENTH COURT OF APPEALS

No. 10-14-00058-CR

LEROY CALHOUN, JR.,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 272nd District Court

Brazos County, Texas

Trial Court No. 12-03318-CRF-272

MEMORANDUM OPINION

Asserting one issue, Leroy Calhoun challenges the sufficiency of the evidence 

supporting his conviction for second-degree felony evading arrest or detention with a 

vehicle. Calhoun moved for a directed verdict based on the State’s alleged failure to 

show the officer’s authority to detain Calhoun. The trial court denied the motion, the 

jury found Calhoun guilty, and the trial court assessed a six-year sentence. We will 

affirm.

Specifically, Calhoun contends that the trial court erred in denying his motion for 
Calhoun v. State Page 2

directed verdict, which is a challenge to the sufficiency of the evidence to support the 

conviction. See Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). The Court 

of Criminal Appeals has expressed our standard of review of a sufficiency issue as 

follows:

In determining whether the evidence is legally sufficient to support 

a conviction, a reviewing court must consider all of the evidence in the 

light most favorable to the verdict and determine whether, based on that 

evidence and reasonable inferences therefrom, a rational fact finder could 

have found the essential elements of the crime beyond a reasonable doubt. 

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9, 

13 (Tex. Crim. App. 2007). This “familiar standard gives full play to the 

responsibility of the trier of fact fairly to resolve conflicts in the testimony, 

to weigh the evidence, and to draw reasonable inferences from basic facts 

to ultimate facts.” Jackson, 443 U.S. at 319. “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.” Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).

The offense of evading arrest requires the State to prove that the defendant 

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

arrest or detain him. TEX. PENAL CODE ANN. § 38.04(a) (West Supp. 2014). Calhoun’s 

sufficiency argument is that the evidence was insufficient to show the officer’s authority 

to detain Calhoun before Calhoun fled.

Officer Tim Davis, who was a deputy with the Burleson County Sheriff’s 

Department on May 17, 2012, testified that he was on patrol in a marked sheriff’s patrol 

vehicle when dispatch advised to be on the lookout for a tan-colored Buick. Soon after 

the dispatch, Davis spotted the vehicle, but he waited for backup to arrive before he 

attempted to pull over the vehicle. When DPS Trooper John Anderson arrived, Davis 
Calhoun v. State Page 3

activated his overhead lights to attempt to stop the suspect vehicle, which then sped 

away at a very high rate of speed. While attempting to get away, the suspect vehicle 

ran a four-way stop intersection, went into a left turn lane, ran several more stop signs, 

drove into oncoming traffic, and drove in a manner dangerous to surrounding vehicles.

Davis said that the suspect vehicle then turned into an apartment complex and 

continued to drive at a high rate of speed and in a dangerous manner. The suspect 

vehicle left the apartment complex and continued to drive in a dangerous manner, 

including driving in the wrong lane and at a high rate of speed. The suspect vehicle 

wrecked while trying to turn, and Calhoun, the driver, fled on foot, but Anderson 

caught him.

Anderson testified that he was called to provide backup to Davis to help him 

stop a suspect vehicle. He confirmed that the suspect vehicle refused to stop for law 

enforcement and that Calhoun fled on foot after wrecking. Anderson chased him and 

yelled for him to stop, but Calhoun continued to run until Anderson threatened to use 

his Taser.

Calhoun’s sufficiency complaint is that, other than Davis’s “be on the lookout” 

testimony, the State did not adduce evidence of the basis for stopping Calhoun—that 

Davis was attempting lawfully to arrest or detain him. Calhoun argues that the case 

law presented to the trial court during argument on his motion for directed verdict—

case law that we and other courts have cited—was wrongly decided and misapplied the 

authority that it relied on.
Calhoun v. State Page 4

The State first responds that, at trial on the morning of jury selection, Calhoun 

filed a motion for continuance; his trial counsel alleged that he was unprepared to try 

the case and that “it would set [him] up for ineffective assistance of counsel to proceed.” 

After a break and discussion with the prosecutors, Calhoun’s trial counsel then stated 

on the record:

Based on the State’s promise to me that as to the initial reason why 

the officers are looking for a vehicle that my client allegedly was driving, 

which merely would be that they were dispatched there to look at the 

described vehicle and not the reason why; then, I can proceed because I do 

not have to get the information from the complaining witness in that other 

case that was dropped. So, I guess we’ll be fine to proceed.

The State thus notes that, in accordance with its agreement, no facts of the underlying 

offense that justified the initial reason to stop and detain Calhoun were presented to the 

jury.

Secondly, the State supports the authority that it relied on in the trial court, 

including our subsequent citation of it, and distinguishes Calhoun’s authority. In 

Pickens v. State, 159 S.W.3d 272 (Tex. App.—Amarillo 2005, no pet.), on a sufficiency 

challenge to a conviction for evading detention, the Amarillo court stated:

Moreover, authority holds that even if the initial attempt at detention is 

unlawful, the suspect may be stopped or arrested for criminal acts which 

he commits while attempting to avoid the officer. Blount v. State, 965 

S.W.2d 53, 54-55 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d). In other 

words, the fact that an officer may not have basis to stop a suspect does 

not insulate the suspect from arrest for other crimes committed while 

attempting to avoid the initial detention.

Pickens, 159 S.W.3d at 274. Calhoun argues that Pickens was wrongly decided and that 

the Amarillo court’s reliance on Blount was misplaced because Blount was a suppression 
Calhoun v. State Page 5

case, not a challenge to the sufficiency of the evidence. Calhoun argues that the 

authority from the Houston First court that we should look to is instead Guillory v. State,

99 S.W.3d 735 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). But the State 

distinguishes Guillory, noting that it did not hold that the lawfulness of a defendant’s 

detention must be determined at the time the officers directed him to stop. There, the 

defendant argued that the evidence was insufficient to find that the officers had a legal 

basis to stop him “because there is no way that the police officers could have known 

whether or not he was actually violating a traffic law at the time they directed him to 

pull over.” Id. at 740. Thus, the issue was not when the officers’ lawful basis for a stop 

must occur, but whether the evidence was sufficient to show that the officers could see 

from their vantage point that the defendant was driving without a front license plate. 

Id. at 741. Also, there was no evidence, unlike this case, that the defendant committed 

any other offenses during law enforcement’s pursuit. See id. at 740-41.

The State furthermore notes that the State’s factual concession in Guillory was not 

the holding in that case, but was just a one-sentence recitation of that concession and the 

only discussion of the issue. In Guillory, the State conceded “that, unless the officers 

had formed either probable cause to arrest appellant or had reasonable suspicion 

sufficient to detain him at the time they directed appellant to stop, the subsequent arrest 

for evading arrest was invalid.” Id. at 740. 

Finally, the State asserts that every appellate court that has addressed this issue 

has held that the offenses committed while a defendant is attempting to evade an 

officer’s detention provides a lawful basis to detain the defendant—even if the officer 
Calhoun v. State Page 6

did not have a lawful reason for the detention at the time the officer attempted to detain 

the defendant initially. For example, in 2007, we stated: 

Moreover, “even if the initial attempt at detention is unlawful, the 

suspect may be stopped or arrested for criminal acts which he commits 

while attempting to avoid the officer.” Pickens v. State, 159 S.W.3d 272, 274 

(Tex. App.—Amarillo 2005, no pet.) (citing Blount v. State, 965 S.W.2d 53, 

54-55 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d)); see Bell v. State, 233 

S.W.3d 583, 587-88 (Tex. App.—Waco 2007, no pet. h.). According to 

Kelly, Ellis, and Lee, Williams drove through stop signs, blew through 

intersections, traveled at a high rate of speed, and ran over a street sign. 

Lee even observed Williams aiming the truck at pedestrians. Even if the 

officers possessed no lawful reason to detain Williams prior to the car 

chase, a lawful reason arose once Williams violated the traffic laws while 

attempting to evade the officers. See Pickens, 159 S.W.3d at 274; see also

Bell, 233 S.W.3d at 587-88.

Williams v. State, No. 10-06-00341-CR, 2007 WL 4260479, at *4 (Tex. App.—Waco Dec. 5, 

2007, pet. ref’d) (mem. op., not designated for publication); see Almond v. State, No. 08-

05-00369-CR, 2007 WL 2742320, at *3 (Tex. App.—El Paso Sept. 20, 2007, no pet.) (not 

designated for publication); see also Bell v. State, 233 S.W.3d 583, 587-88 (Tex. App.—

Waco 2007, pet. ref’d, untimely filed).

In conclusion, based on the above authority, we agree with the State that if a 

defendant commits criminal activity during an attempt to evade law enforcement, 

evidence of that criminal activity alone can be sufficient to support a finding that the 

law enforcement officer’s detention was lawful. And in this case, the officer’s testimony 

was that Calhoun committed numerous traffic offenses while attempting to evade 

detention. Thus, the evidence is sufficient to support the lawfulness of the officers’ 

subsequent detention of Calhoun, and the trial court did not err in denying Calhoun’s 

motion for directed verdict. 
Calhoun v. State Page 7

We overrule Calhoun’s sole issue and affirm the trial court’s judgment.

REX D. DAVIS

Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Affirmed

Opinion delivered and filed February 12, 2015

Do not publish

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