STEPHEN MICHAEL BRINDLE v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

STEPHEN MICHAEL BRINDLE, Appellant v. THE STATE OF TEXAS, Appellee

No. 05–10–01258–CR

Decided: April 9, 2012

Before Justices O'Neill, Richter, and Francis

MEMORANDUM OPINION

Opinion By Justice O'Neill

Appellant Stephen Michael Brindle was convicted by the trial court of evading arrest and sentenced to nine months in jail, probated for three years.   He was also fined $800.00, ordered to perform 160 hours of community service, and given thirty days house arrest.   He argues on appeal the evidence is insufficient to support his conviction, and the State withheld exculpatory evidence.   We affirm the trial court's judgment.

Sufficiency of the Evidence

In his second and third issues, appellant challenges the sufficiency of the evidence to support his conviction for evading arrest.   He argues there is no evidence establishing he was the driver of the motorcycle on the night in question, and the testimony of Whitney Parks, his girlfriend, is not credible.

We acknowledge appellant has argued the evidence is both legally and factually insufficient to support his conviction;  however, given the pronouncement by the Texas Court of Criminal Appeals, we shall review only the legal sufficiency of the evidence.   See Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App.2010) (plurality op.);   see also Lucio v. State, 351 S.W.3d 878, 895 (Tex.Crim.App.2011) (“We do not review the factual sufficiency of the evidence to support a jury's finding on the elements of a criminal offense that the State is required to prove beyond a reasonable doubt.”).

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, a rational factfinder could have found the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 318–19 (1979).   This standard gives full play to the responsibility of the factfinder to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.  Id. at 319.   An appellate court will not reassess credibility because the factfinder is the sole judge of witness's credibility and the weight to be given the testimony.  Id.

The State had the burden to prove appellant intentionally fled from a person he knew to be a peace officer attempting to lawfully arrest or detain him.   See Tex. Penal Code Ann. § 38.04 (West 2011);  Peavey v. State, 248 S.W.3d 455, 469 (Tex.App.—Austin 2008, pet. ref'd).   Considering the evidence in the light most favorable to the verdict, the record reveals the following.

At approximately 11 p.m. on May 12, 2009, Officer Denver Jackson, a Sachse police officer, was parked in the median on northbound 78 running his radar and monitoring traffic.   He and his trainee, Officer Smith, observed a motorcycle pass at seventy-five-miles-per-hour in a forty-five miles-per-hour speed zone.   The officers immediately pursued the motorcycle.   When they got close enough, they initiated the patrol car's emergency lights and siren but the motorcycle failed to yield.   The closest they got to the motorcycle was within a car length and at that point, the officers were driving close to ninety-five-miles-per-hour.

Despite trying to avoid an accident and the possibility of running over the driver of the motorcycle if he fell off, Officer Jackson identified the motorcycle as a “cruiser type,” probably a Suzuki, with the license plate number of 3GU728.   He described the driver as a white or Hispanic male, with a medium build, and a bald or really closely-shaved head.   The driver was wearing a blue sleeveless shirt and had tattoos going down his left forearm.

The pursuit lasted approximately five minutes before Sergeant Willis with the Sachse Police Department advised Officer Jackson to discontinue pursuit.

Later that night, the license plate was traced back to Paul Smith.   Appellant lived with Smith at the time of the incident and often borrowed the motorcycle, a 2007 Suzuki Boulevard 850, to get to and from work.   Smith confirmed that appellant had borrowed his motorcycle on the night of the incident.   However, when Smith was questioned by the police concerning the whereabouts of his motorcycle and he called appellant to ask him if he had been speeding on northbound 78 earlier in the evening, appellant claimed he and the motorcycle were in Rowlett with his girlfriend and had been there for several hours.

Once Officer Jackson had appellant's identification as the possible driver of the motorcycle, he ran a search and discovered appellant had an arrest record.   Appellant had been arrested the previous week on the same motorcycle for driving with an expired registration and not carrying insurance.

Officer Jackson compared the book-in photograph from that arrest to the man allegedly evading arrest.   He said both had “approximately the same build, same hair style, and description of the tattoos matched.”   Officer Jackson testified at trial appellant had tattoos on his left forearm.   Appellant, in fact, did not have any tattoos on his left forearm but rather had tattoos on the upper-half of his left arm, running from his elbow to his shoulder.   Officer Jackson later testified, “I'm sure there was tattoos on the left side.”

Whitney Parks, appellant's girlfriend, testified that appellant admitted to her that in early summer, around May, he had been drinking.   He “ran from the cops,” and they did not catch him.   She said he was driving a motorcycle at the time.   She also testified he told her “they wouldn't be able to prove anything.”

Appellant claims Parks is not a credible witness because a conviction would help her in a custody dispute against him involving Parks's daughter.   However, Parks did not approach the District Attorney's Office with the information appellant shared with her;  rather, her brother-in-law shared the information.   She was subpoenaed to appear at trial.   She denied any improper motive in giving testimony.   Further, at the time of trial, both parties had lawyers but a custody suit was not on file.   The trial court, as the judge of witness credibility, was free to believe her testimony.  Jackson, 443 U.S. at 319.

Appellant testified in his own defense.   He denied making any admission to Parks.   While he admitted to sometimes borrowing Smith's motorcycle to get to and from work, he could not remember if he borrowed it on May 12.

Viewing the evidence in the light most favorable to the verdict, the trial court could have reasonably found the elements of evading arrest.   By running the license plate, Officer Jackson determined the motorcycle belonged to Smith, who told officers appellant had borrowed the motorcycle on the night in question.   While Officer Jackson's previous report and testimony regarding the location of the tattoos on appellant's arm was incorrect, the record is clear that appellant was wearing a sleeveless shirt on May 12 and he had tattoos on the upper portion of his left arm.   The trial court could reasonably conclude Officer Jackson made a mistake in the location of the tattoos given the high-speed of the chase.   Further, Officer Jackson testified, “I'm sure there was tattoos on the left side.”

Although Smith testified three other people had access to the motorcycle and they all had similar builds, hairstyles, and tattoos, Smith testified that to his knowledge, no one other than appellant was driving the motorcycle on May 12, 2009.   Furthermore, Parks testified appellant told her he had fled from police one night in early May. Accordingly, the evidence is legally sufficient to support his conviction.   Appellant's second and third issues are overruled.

Brady Violation

In his first issue, appellant alleges the State withheld exculpatory evidence by failing to produce the correct in-car video from May 12, 2009, which could have exonerated appellant or impeached Officer Jackson's testimony.   The State responds appellant has waived his complaint, or alternatively, the State did not commit a Brady violation.   We agree appellant has failed to preserve this issue for review.

In regards to an alleged Brady violation, when the withheld evidence is disclosed during trial, the inquiry is whether the defendant was prejudiced by the tardy disclosure.  State v. Fury, 186 S.W.3d 67, 73 (Tex.App.—Houston [1st Dist.] 2005, pet. ref'd).   An opportunity to request a continuance to review the evidence “adequately satisfies [the] due process requirements of Brady.”  Nix v. State, 05–98–01184–CR, 2001 WL 569623, at *16 (Tex.App.—Dallas 2001, pet. ref'd) (not designated for publication).   A defendant's failure to request a continuance indicates the tardy disclosure of the evidence was not prejudicial and waives his right to appeal an alleged Brady violation.  Id. at 74;  see also State v. DeLeon, 971 S.W.2d 701, 707 (Tex.App.—Amarillo 1998, pet. ref'd) (holding that if defendant fails to request a continuance or recess, the defendant waives any error resulting from the alleged Brady violation).

Here, although it is unclear when appellant became aware that the in-car video provided by the State did not show the motorcycle chase involving appellant on May 12, 2009, the video was not referenced in opening statements by either side.1  Rather, appellant obviously knew about the mix up by the opening of evidence because he thoroughly cross-examined Officer Jackson about the video produced and the procedures used to capture video and store it as evidence.   At no time did appellant ever request a continuance or recess to obtain the correct video from the State.   Accordingly, appellant has waived his Brady argument.  DeLeon, 971 S.W.2d at 797;  Nix, 2001 WL 569623, at *16.   Appellant's first issue is overruled.

In his fourth issue, appellant asserts his due process rights were denied when the State withheld exculpatory evidence.   Based on our resolution of appellant's first issue, we likewise conclude his fourth issue is overruled.   Nix, 2001 WL 569623, at *16 (holding an opportunity to request a continuance to review the evidence “adequately satisfies [the] due process requirements of Brady ”).

Conclusion

Having resolved all of appellant's issues against him, we affirm the judgment of the trial court.

101258F.U05 S

Court of Appeals

Fifth District of Texas at DallasJUDGMENT

STEPHEN MICHAEL BRINDLE, Appellant

No. 05–10–01258–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 219th Judicial District Court of Collin County, Texas.  (Tr.Ct.No. Cause No.219–81982–09).

Opinion delivered by Justice O'Neill, Justices Richter and Francis, participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered April 9, 2012.

/Michael J. O'Neill/

MICHAEL J. O'NEILL

JUSTICE

FOOTNOTES

1.  FN1. The video produced by the State only showed a distant tail light in the dark, rather than the chase described by Officer Jackson.

MICHAEL J. O'NEILL JUSTICE

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