No. PD–0291–15

in the court of criminal appeals of texas

leroy calhoun

Petitioner

v.

the state of texas

Respondent

On review from the Tenth Court of Appeals

Case number 10–14–00058–CR

petition for discretionary review

Franklin Bynum

Texas Bar Number 24069451

2814 Hamilton Street

Houston, Texas 77004

(713) 343-8844

fgb@lawfgb.com

Counsel for Applicant

Oral Argument Requested

PD-0291-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 6/1/2015 4:36:25 PM

Accepted 6/2/2015 11:17:13 AM

ABEL ACOSTA

CLERK
2

identity of parties and counsel

Appellant Leroy Calhoun

2701 Longmire Drive # 501

College Station, Texas 77840

Defense Counsel at Trial Craig Greaves

118B South Main Street

Bryan, Texas 77803

Prosecutors at Trial William Ward

Assistant District Attorney

Brazos County District Attorney

300 East 26th Street

Bryan, Texas 77803

Judge Presiding at Trial The Honorable Travis Bryan

272nd District Court

300 E 26th Street

Bryan, Texas 77803

Appellant’s Counsel Clint Sare

at the Court of Appeals PO Box 1694

Bryan, Texas 77803

State’s Counsel Jessica Escue

at the Court of Appeals Brazos County District Attorney

300 East 26th Street

Bryan, Texas 77803

Petitioner’s Counsel Franklin Bynum

on Discretionary Review Bynum Law Office PLLC

2814 Hamilton Street

Houston, Texas 77004
3

table of contents

identity of parties and counsel............................................. 2

table of contents .................................................................. 3

index of authorities.............................................................. 4

statement regarding oral argument ..................................... 5

statement of the case............................................................ 5

statement of procedural history.......................................... 5

question presented for review .............................................. 6

In an evading arrest case, the State must prove that the 

officer’s attempt to detain or arrest was lawful. In this 

case, there is no evidence regarding whether the initial 

attempt to detain or arrest was unlawful; the State relied 

on conduct after the initial stop—which was never shown 

to be lawful— to prove a lawful attempt to detain or arrest. 

May the State prove its case with evidence that that may 

have been the result of an unlawful attempt to detain?..........................................6

argument ............................................................................... 6

prayer .................................................................................... 9

certificate of compliance .................................................... 10

certificate of service........................................................... 10

appendix a: the opinion below............................................... 11
4

index of authorities

Cases

Blount v. State, 965 S.W.2d 53, 54–55 (Tex. App.–Houston [1st Dist.] 

1998, pet. ref’d) ............................................................................... 7

Calhoun v. State, 10-14-00058-CR, 2015 WL 630622 (Tex. App.—

Waco Feb. 12, 2015, no pet h.). .................................................5, 6, 7

Comer v. State, 754 S.W.2d 656 (1986)................................................ 8

Pickens v. State, 159 S.W.3d 272 (Tex. App.–Amarillo 2005, no pet.). 7

Rules

Tex. R. App. P. 66.3(b)........................................................................ 8

Constitutional Provisions

Tex. Const. art. I, § 10......................................................................... 8

U.S. Const. amend. V.......................................................................... 8

U.S. Const. amend. XIV...................................................................... 8
5

statement regarding oral argument

Counsel always enjoys an opportunity to address issues personally with the Court.

statement of the case

At trial in this evading arrest case, the State and the defense entered into an agreement on the record to not discuss why ofcers initially attempted to stop Leroy Calhoun; consequently, the record has 

no evidence that the initial attempted detention was lawful. The State 

sought to prove the element of lawful detention by conduct that came 

only after a detention that was never proven to be lawful. The court of 

appeals agreed, and afrmed the conviction.

Leroy Calhoun brings this petition for discretionary review to 

challenge the court of appeals’ determination that the initial attempted 

detention need not be shown to be lawful in an evading arrest case.

statement of procedural history

Leroy Calhoun pleaded not guilty to evading with a motor vehicle on May 1, 2006 in the 272nd District Court of Brazos County.1 The 

jury found Calhoun guilty, and the judge imposed a sentence of six 

years in prison on January 31, 2014.

2

 

1 Calhoun v. State, 10-14-00058-CR, 2015 WL 630622, at *1 (Tex. App.—Waco Feb. 12, 2015, no 

pet h.). 2 Id.
6

The Tenth Court of Appeals afrmed the conviction on February 12, 2015.3

question presented for review

In an evading arrest case, the State must 

prove that the ofcer’s attempt to detain or 

arrest was lawful. In this case, there is no 

evidence regarding whether the initial 

attempt to detain or arrest was unlawful; the 

State relied on conduct after the initial 

stop—which was never shown to be lawful—

to prove a lawful attempt to detain or arrest. 

May the State prove its case with evidence 

that that may have been the result of an 

unlawful attempt to detain?

argument

On the morning of trial in this case, the defense lawyer moved 

for a continuance because he was unprepared to litigate the initial reason the ofcers attempted to detain Calhoun.4 In response, the State 

and the defense entered into a stipulation that they would not discuss 

the reason for the initial stop.5

The State then put on evidence that, after an initial attempted 

detention that was not ever shown to be lawful, that Calhoun committed several trafc violations: “ran a four-way stop intersection, went 

 

3 Id. at *3. 4 Id. at *2. 5 Id.
7

into a left turn lane, ran several more stop signs, drove into oncoming 

trafc, and drove in a manner dangerous to surrounding vehicles.”6

On appeal, Calhoun raised one issue: that the evidence was insufcient because the State failed to prove that the initial attempted 

detention was lawful.7

The Tenth Court of Appeals disagreed, and found that that initial attempted detention need not be proven lawful for the evidence to 

be sufcient.8 The Tenth Court cited Pickens out of Amarillo and 

Blount out of the First Court in Houston to support the proposition 

that the initial stop need not be proven to be lawful if there are lawful 

reasons for the attempted detention that occur after the initial attempted detention.9 The Court below cited its own concurring authority, and noted 

every appellate court that has addressed this 

issue has held that the ofenses committed 

while a defendant is attempting to evade an 

ofcer's detention provides a lawful basis to 

detain the defendant—even if the ofcer did 

not have a lawful reason for the detention at 

the time the ofcer attempted to detain the 

defendant initially.

10

 

6 Id. at *1. 7 Id.

8 Id. at *3. 9 Pickens v. State, 159 S.W.3d 272 (Tex. App.–Amarillo 2005, no pet.); Blount v. State, 965 S.W.2d 

53, 54–55 (Tex. App.–Houston [1st Dist.] 1998, pet. ref’d). 10 Calhoun, 2015 WL 630622 at *3.
8

This should not be so. The decision below and the authority it 

relies upon should be overruled; this is an important question of state 

law that has not been but should be resolved by this Court.11 It is a violation of Due Process and Due Course of Law for the police to be able 

to unlawfully attempt initiate a trafc stop, then use a citizen’s response to the unlawful attempted stop to then convict that citizen of a 

felony.12

This idea of Due Process and fundamental fairness pervades 

other areas of criminal law. For example, evidence—even contraband—that was abandoned as a result of an unlawful stop is considered to be involuntarily abandoned, and may not be used.13 The abandonment must be voluntary, and not “merely the result of police unlawfulness.”14 Even though Comer is a suppression case, the principle 

is the same: acts that are coerced through unlawful police action 

should be considered involuntary and not considered to determine the 

lawfulness of a stop.

 

11 Tex. R. App. P. 66.3(b). 12 U.S. Const. amend. V, XIV; Tex. Const. art. I, § 10. 13 Comer v. State, 754 S.W.2d 656, 658 (1986). 14 Id.
9

prayer

Leroy Calhoun prays that the Court grant his petition and set a 

briefing schedule.

Respectfully,

/s/ Franklin Bynum

Franklin Bynum

Texas Bar Number 24069451

2814 Hamilton Street

Houston, Texas 77004

(713) 343-8844

fgb@lawfgb.com
10

certificate of compliance

The word-processing software used to produce this brief reports 

its length as 1,182 words.

/s/ Franklin Bynum

Franklin Bynum

certificate of service

I delivered a copy of this petition to the Brazos County District 

Attorney and to the State Prosecuting Attorney, both by electronic

service at the time of filing on May 30, 2015, and then again on submission of a corrected filing on June 1, 2015.

/s/ Franklin Bynum

Franklin Bynum
11

appendix a: the opinion below
2015 WL 630622

Only the Westlaw citation is currently available.

SEE TX R RAP RULE 47.2 FOR DESIGNATION AND SIGNING OF OPINIONS.

MEMORANDUM OPINION

DO NOT PUBLISH

Court of Appeals of Texas,

Waco.

Leroy Calhoun, Jr., Appellant

v.

The State of Texas, Appellee

No. 10–14–00058–CR | Opinion delivered and filed February 12, 2015

From the 272nd District Court, Brazos County, Texas, Trial Court No. 12–03318–CRF–272, Travis B. Bryan, III, 

Judge

Attorneys and Law Firms

Clint F. Sare, Attorney at Law, Bryan, TX, for Appellant/Relator.

Javis J. Parsons, District Attorney, Jessica Escue, Assistant District Attorney, Bryan, TX, for Appellees/Respondents.

Before Chief Justice Gray, Justice Davis, and Justice Scoggins.

MEMORANDUM OPINION

REX D. DAVIS, Justice

*1 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 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 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.

*2 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.

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

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 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.

*3 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 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.

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

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.