Michael Howard Bradley v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-94-00700-CR Michael Howard Bradley, Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT NO. 17,887, HONORABLE CHARLES E. LANCE, JUDGE PRESIDING PER CURIAM A jury found appellant guilty of felony escape and assessed punishment, enhanced by a previous felony offense, at imprisonment for five years. Penal Code, 63d Leg., R.S., ch. 399, sec. 1, § 38.07, 1973 Tex. Gen. Laws 883, 950, amended by Act of May 26, 1985, 69th Leg., R.S., ch. 328, § 1, 1985 Tex. Gen. Laws 1391 (Tex. Penal Code Ann. § 38.07, since amended and renumbered as § 38.06). In his only point of error, appellant contends the evidence is legally insufficient to sustain the conviction. Around 1:00 a.m. on October 7, 1990, Cameron police officer Charles Lynch observed a red Porsche automobile in which appellant was a passenger. Lynch knew that there was an outstanding warrant for appellant's arrest for a parole violation. Intending to arrest appellant on that warrant, Lynch turned on the overhead lights of his patrol vehicle and succeeded in stopping the Porsche. Lynch walked to the passenger side of the car and told appellant, "Mike, get out of the car, you're under arrest for parole violation." As appellant got out of the car, Lynch said, "Put your hands on the car, Michael, you're under arrest." At this point, Lynch was within arm's reach of appellant but had not touched him. Instead of complying with Lynch's instructions, appellant "kind of looked around and he took off" running. Lynch and another officer briefly pursued appellant, but did not catch him. A person commits an offense if he escapes from custody when he is under arrest. Sec. 38.07(a)(1) (now sec. 38.06(a)(1)). The indictment in this cause alleged that appellant "intentionally and knowingly escaped from the custody of Charles Lynch, a peace officer, after the said [appellant] had been arrested for the offense of felony parole violation." Appellant contends the State failed to prove the alleged offense because the evidence demonstrates that he was not under arrest when he fled from the officer. A person is arrested when he has been actually placed under restraint by an officer. Tex. Code Crim. Proc. Ann. art. 15.22 (West 1977). It is not the actual physical taking into custody that will constitute an arrest, but an arrest occurs when a person's liberty of movement is restricted or restrained. Hardinge v. State, 500 S.W.2d 870, 873 (Tex. Crim. App. 1973); see also Amores v. State, 816 S.W.2d 407, 411 (Tex. Crim. App. 1991); White v. State, 601 S.W.2d 364, 365-66 (Tex. Crim. App. 1980); Bell v. State, 845 S.W.2d 454, 459 (Tex. App.--Austin 1993, no pet.). The mere fact that an officer tells a person that he is under arrest is not enough to complete the arrest. The officer must assume custody and control over the party. Smith v. State, 219 S.W.2d 454, 456 (Tex. Crim. App. 1949); Burkhalter v. State, 642 S.W.2d 231, 233 (Tex. App.--Houston [14th Dist.] 1982, no pet.). The facts in this cause are similar to those in Snabb v. State, 683 S.W.2d 850 (Tex. App.--Corpus Christi 1984, no pet.). In that case, an airport security officer saw the defendant, whom he knew to be intoxicated, attempting to drive out of the parking lot. The officer and his partner pursued the defendant on foot and succeeded in stopping her. The officer told the defendant she was under arrest and ordered her to gather her possessions, lock her car, and come with him. The defendant cursed the officer, refused to cooperate, and ran away in disregard of his command to stop. Based on this evidence, the defendant was convicted of escaping from the officer's custody following arrest. After discussing many of the opinions cited in the preceding paragraph, the court of appeals reversed, holding that the defendant's arrest was not complete when she fled from the officer because the requisite elements of detention and control were absent. The State relies on the opinion in Harrell v. State, 743 S.W.2d 229, 231 (Tex. Crim. App. 1987). The defendant in Harrell was arrested and jailed, but later became ill and was taken to a hospital. He was not under guard at the hospital but had been told that he remained under arrest. The defendant left the hospital and travelled to another state. Convicted of escape, the defendant argued that he was not in custody when he left the hospital. The Court of Criminal Appeals disagreed, holding that actual, physical restraint is not a prerequisite to a showing of custody in the context of the offense of escape. The court concluded that the defendant's legal status as an arrestee was not dependent on his physical location and that he remained in custody at the hospital. The issue in Harrell was not what constitutes an initial arrest, but whether the defendant remained under arrest and in custody when he was taken to the hospital. The issue before us, on the other hand, is whether appellant was ever arrested in the first place. Harrell teaches that actual physical restraint is not a necessary prerequisite to continuing custody after an arrest. The opinion does not purport to dispense with the necessity of establishing physical control in order to effect an arrest. The two other escape opinions to which we are cited also discuss the degree of restraint required for "custody" rather than the degree of restraint required to accomplish an arrest. Casey v. State, 681 S.W.2d 178 (Tex. App.--Houston [14th Dist.] 1984, pet. ref'd) (prosecution for escaping custody after being charged with offense); Martin v. State, 654 S.W.2d 473 (Tex. App.--Waco 1982), rev'd on other grounds, 652 S.W.2d 777 (Tex. Crim. App. 1983) (prosecution for escaping from penal institution following conviction). The discussions of the nature of custody found in these opinions do not speak to the issue of whether appellant was under arrest when he ran from Officer Lynch. Like the defendant in Snabb, appellant was shown to have fled from an officer who was attempting to arrest him. While the evidence might be sufficient to prove appellant guilty of evading arrest, the State chose to accuse him of the more serious offense of escape. By its pleading, the State assumed the burden of proving a completed arrest. Because the evidence shows that Lynch never succeeded in securing custody and control over appellant, the State did not satisfy that burden. Accordingly, we reverse the judgment of conviction and render a judgment of acquittal. Before Justices Powers, Aboussie and Kidd Reversed and Rendered Filed: January 10, 1996 Do Not Publish or restrained. Hardinge v. State, 500 S.W.2d 870, 873 (Tex. Crim. App. 1973); see also Amores v. State, 816 S.W.2d 407, 411 (Tex. Crim. App. 1991); White v. State, 601 S.W.2d 364, 365-66 (Tex. Crim. App. 1980); Bell v. State, 845 S.W.2d 454, 459 (Tex. App.--Austin 1993, no pet.). The mere fact that an officer tells a person that he is under arrest is not enough to complete the arrest. The officer must assume custody and control over the party. Smith v. State, 219 S.W.2d 454, 456 (Tex. Crim. App. 1949); Burkhalter v. State, 642 S.W.2d 231, 233 (Tex. App.--Houston [14th Dist.] 1982, no pet.). The facts in this cause are similar to those in Snabb v. State, 683 S.W.2d 850 (Tex. App.--Corpus Christi 1984, no pet.). In that case, an airport security officer saw the defendant, whom he knew to be intoxicated, attempting to drive out of the parking lot