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Date: 07-14-2017

Case Style:

Lavoshae Wygal v. The State of Texas

First Court of Appeals - Texas Courts

Case Number: 01-15-00771-CR

Judge: Evelyn Keyes

Court: Court of Appeals For The First District of Texas

Plaintiff's Attorney:

Daniel C. McCrory
The Honorable Kim K Ogg
Travis Dunlap

Defendant's Attorney:

Cheri Duncan – Harris County Public Defender's Office

Benjamin Friedman

Description: On August 28, 2014, Houston Police Department (“HPD”) Officer D. Morse
attempted to execute an arrest warrant at a house in southeast Houston. When
Officer Morse stopped at the house, a vehicle driven by the subject of the arrest
warrant, a man named Darryl Ross, quickly reversed backwards into the driveway,
and Ross jumped out of the car and “took off running” behind the house. Officer
Morse attempted to follow Ross, but there were three pit bulls chained up in the
backyard, and they prevented him from going further into the yard. Officer Morse
did not see where Ross went.
At this point, appellant, who lived in the house, walked out of the back door
and asked what was happening. Officer Morse explained that a felony suspect “had
just bailed out of a car and ran to [appellant’s] backyard,” and that was why he had
come into her driveway. Officer Morse mentioned Ross’s name, and appellant stated
that she did not know the name and that he had not run into her house. When Officer
Morse asked appellant if she knew who owned the car Ross had been driving, she
3

said that it was her car. She gave no explanation for why a man she did not know
was driving her car.
Because Officer Morse did not know where Ross had gone, he detained
appellant and placed her, without handcuffs, in the backseat of his patrol car. Officer
Morse testified that he did this for her safety because he did not want to put her in a
dangerous situation, and he also did this for his safety because he did not know
appellant and he did not know if appellant was related to Ross. Officer Morse waited
about an hour and a half for backup officers to arrive to create a perimeter and bring
a canine unit, and while he was waiting he occasionally spoke with appellant. He
repeatedly explained that he was looking for a suspect, and appellant repeatedly
stated that she did not know the suspect. Officer Morse testified that he asked
appellant for her name, and she responded by saying, “Shay Marie.” Officer Morse
also asked her for her birthdate, and she told him that her birthdate was February 18,
1994. Officer Morse later learned that this information was incorrect and that
appellant’s correct date of birth was November 20, 1992.2 Officer Morse asked
appellant for identification, such as her driver’s license, but she did not provide him
with any.
2 Officer Morse acknowledged that his supplement to the offense report stated that appellant told him that her birthdate was February 18, 1984. This date was also not accurate.
4

Officer M. Glover testified that, around 10:30 a.m. on August 28, 2014, he
had been assigned to execute an arrest warrant for Ross at a particular address. When
the State asked Officer Glover who lived at this address, Glover responded:
To my knowledge that at the time we knew that the suspect [Ross] lived there, we believe with a girlfriend, but we weren’t exactly sure who the homeowner was at the time. We just knew that the suspect lived there, and we had information about a blue car that he was known to drive and that car ended up being in the drive.

After Officer Morse radioed that Ross had abandoned the car he had been driving,
Officer Glover, who was driving down a nearby street, saw Ross run in his direction
and then back towards the house once he saw Glover’s patrol car. Officer Glover
believed that Ross might have gone into the house, so he requested backup to set up
a perimeter around the house.
A canine unit tracked Ross’s scent back to the house,3 and that was where
Officer Glover met appellant, who was then detained in a patrol car. At that point,
Officer Glover did not know who appellant was or who she was relative to Ross.
Officer Glover searched the house to look for Ross, and he found appellant’s school
identification card, which listed her name as “Lavoshae Wygal.” Appellant never
told Officer Glover her date of birth. Officer Glover testified that he did not speak
much with appellant at the scene, but, based on conversations that occurred at the
scene, the officers believed that Ross was appellant’s boyfriend.
3 Officers later arrested Ross at a different location.
5

Officer O. Pardo also arrived at the scene after he heard on the radio that a
foot chase was occurring. Appellant was placed in the backseat of Officer Pardo’s
patrol car, and Officer Pardo asked her for her name and date of birth. She responded
that her name was “Shay Marie” and that her birthdate was February 18, 1994.
Officer Pardo performed a computer search using this information, which yielded
no results. Officer Pardo asked appellant again for her information, but appellant
was upset and did not cooperate. He later received appellant’s school identification
card from another officer, and, when he used that information, his computer pulled
up appellant’s driver’s license, which showed her correct identifying information.
Appellant testified on her own behalf. She stated that she was a full-time
university student, and on August 28, 2014, she was awakened “very early” by patrol
lights shining through her bedroom window. She heard her dogs barking in the
backyard, and she peeked out the back door to see what was going on. Officer Morse
grabbed her by the arm and pulled her out of the house. Appellant asked him what
was going on, but he did not say anything to her and just put her in the back of his
patrol car. She testified that she sat in the back of Officer Morse’s patrol car for at
least two hours and he never told her why she was being detained.
Appellant stated that around fifteen police officers arrived on the scene, and
Officer Glover took her out of Officer Morse’s patrol car and placed her in handcuffs
without any explanation. Appellant then waited in the back of the patrol car,
6

handcuffed, for another two hours without anyone explaining why she was being
detained. She testified that no one spoke to her about a felony arrest warrant or a
man named Darryl Ross, and she stated that she did not know a Darryl Ross, that he
was not her boyfriend, and that he did not live at her address. Appellant testified
that the officers brought her to the back door and asked her permission to search the
house, and she responded that she could not give them permission because she did
not own the house.
Appellant also testified that neither Officer Morse nor Officer Glover asked
her for her name or birthdate. Officer Pardo did ask her for her birthdate, and she
told him that her birthdate was November 20, 1992. Appellant testified that Officer
Pardo wrote “11/20/92” down on her school identification card and then used that
information to perform a computer search.4 The officers allowed appellant to go
inside the house to change clothing, and then they drove her to a police substation.
Appellant stated that none of the officers ever told her why they had arrested her.
She testified that she never gave any of the officers a false name or a false date of
birth.
4 Officer Pardo testified that he did not recall writing down appellant’s date of birth on her student identification card.
7

The jury found appellant guilty of the offense of failure to identify. The trial
court assessed her punishment at six days’ confinement, with credit for time already
served. This appeal followed.
Sufficiency of the Evidence
In her sole issue, appellant contends that the State failed to present sufficient
evidence that she gave a false name and birthdate to Officer Morse and that Morse
lawfully detained her.
A. Standard of Review
When reviewing the sufficiency of the evidence, we view all of the evidence
in the light most favorable to the verdict to determine whether any rational fact finder
could have found the essential elements of the offense beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Adames v.
State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that Jackson standard
is only standard to use when determining sufficiency of evidence). The jurors are
the exclusive judges of the facts and the weight to be given to the testimony. Bartlett
v. State, 270 S.W.3d 147, 150 (Tex. Crim. App. 2008). The jury, as the sole judge
of credibility, may accept one version of the facts and reject another, and it may
reject any part of a witness’s testimony. See Sharp v. State, 707 S.W.2d 611, 614
(Tex. Crim. App. 1986); see also Henderson v. State, 29 S.W.3d 616, 623 (Tex.
8

App.—Houston [1st Dist.] 2000, pet. ref’d) (stating jury can choose to disbelieve
witness even when witness’s testimony is uncontradicted).
We may not re-evaluate the weight and credibility of the evidence or substitute
our judgment for that of the fact finder. Williams v. State, 235 S.W.3d 742, 750
(Tex. Crim. App. 2007). We afford almost complete deference to the jury’s
credibility determinations. See Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim.
App. 2008). We resolve any inconsistencies in the evidence in favor of the verdict.
Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); see also Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (“When the record supports
conflicting inferences, we presume that the factfinder resolved the conflicts in favor
of the prosecution and therefore defer to that determination.”).
B. False and Fictitious Name or Date of Birth
To establish that appellant committed the offense of failure to identify, the
State had to prove that appellant intentionally gave a false and fictitious name and
date of birth to Officer Morse, who had lawfully detained appellant and whom
appellant knew to be a peace officer. See TEX. PENAL CODE ANN. § 38.02(b)(2)
(West 2011); Jones v. State, 396 S.W.3d 558, 563 (Tex. Crim. App. 2013) (stating
that purpose of section 38.02 “is to ensure that [officers] receive accurate
information by criminalizing the act of providing law enforcement with false
identification”). A person acts intentionally, or with intent, “with respect to the
9

nature of his conduct or to a result of his conduct when it is his conscious objective
or desire to engage in the conduct or cause the result.” TEX. PENAL CODE ANN.
§ 6.03(a) (West 2011).
Section 38.02 does not define “false” or “fictitious.” In construing this
section, the Austin Court of Appeals has considered dictionary definitions in
determining the ordinary and common meanings of “false” and “fictitious,” and our
sister court has stated, “A review of such authorities consistently reflects that ‘false’
commonly means ‘not true’ and may encompass an intent to deceive. ‘Fictitious,’
in common usage, often refers to something that is ‘not real’ or ‘imaginary,’ and
likewise may include an intent to deceive.” Smith v. State, 363 S.W.3d 761, 775
(Tex. App.—Austin 2012, pet. ref’d). The Austin Court also found it “significant
that the statutorily prohibited conduct (giving a ‘false’ or ‘fictitious’ name under the
circumstances described) is immediately preceded by the word ‘intentionally,’
which denotes that the culpable mental state is connected with the conduct itself.”
Id. at 776. The Austin Court concluded that to sustain a conviction for failure to
identify, the State must present sufficient evidence that it was the defendant’s
conscious objective or desire to give the officer “a ‘false’ name (i.e., one that is not
‘true’ to deceive [the officer]) or a ‘fictitious’ name (one that is ‘imaginary’ or ‘not
real’ to deceive [the officer]).” Id. The court noted that “the ‘falsity’ or
10

‘fictitiousness’ of a name will turn largely on the speaker’s intent and the context in
which the name is used.” Id.
In Smith, the defendant, Janeen Smith, identified herself to a police officer as
“Jay Smith.” Id. at 764. At a bench trial for the offense of failure to identify, Smith
argued that she did not give a false or fictitious name to officers and testified that
she had used “Jay Smith” as a nickname for approximately seventeen years and that
she had business cards and checks issued to her in that name. Id. at 766. She stated
that the community associated that name with her, but she acknowledged that the
name on her driver’s license and vehicle registration was “Janeen Smith,” not “Jay
Smith.” Id. In determining that sufficient evidence supported the trial court’s
finding that Smith gave a false or fictitious name, the Austin Court noted that Smith
incorrectly informed the officer that “Jay Smith” was the name on her driver’s
license and that Smith had outstanding warrants under her legal name, which
provided a “motive to mislead [the officer] regarding her true name and identity.”
Id. at 776. The court concluded that the trial court could have disbelieved Smith’s
testimony that she gave the name “Jay Smith” “[o]ut of habit for doing it for 17
years” and not out of an intent to deceive. Id. at 776–77.
Here, Officer Morse testified that, after he detained appellant by placing her
in the back of his patrol car, he asked for her name, and she responded that her name
was “Shay Marie.” Appellant later provided this same name to Officer Pardo, but
11

when he used this name to run a computer search for information, this name yielded
no results. After finding appellant’s school identification card which stated her legal
name, Lavoshae Wygal, Officer Pardo used this name in a computer search, and the
search pulled up appellant’s driver’s license.
Appellant argues on appeal that, given her legal name of Lavoshae Wygal,
“Shay Marie makes a perfectly appropriate nickname,” and she cites Smith for the
proposition that a nickname can be “false” under section 38.02 only “when the
surrounding circumstances indicate an intent to deceive.” At trial, appellant testified
on her own behalf. However, unlike the defendant in Smith, who at least offered
some testimony that “Jay Smith,” the name that she gave to the police officer, was a
nickname that she had used for many years, appellant provided no testimony that
“Shay Marie” is a nickname that she uses or that other people use for her. Appellant
offered no explanation for the name of “Shay Marie” and did not attempt to connect
that name to her. Instead, she testified that Officer Morse never spoke to her and
that the only question Officer Pardo asked her was her date of birth, not her name.
The jury thus heard testimony that appellant told Officer Morse that her name
was “Shay Marie,” and it heard testimony that appellant’s legal name is Lavoshae
Wygal. The jury heard no testimony that “Shay Marie” is a nickname that appellant
answers to or uses. The jury therefore reasonably could have concluded that
appellant intentionally gave Officer Morse a name that was “not true” or “not real.”
12

See id. at 775. We conclude that the State presented sufficient evidence that
appellant provided Officer Morse with a false or fictitious name. See TEX. PENAL
CODE ANN. § 38.02(b); Smith, 363 S.W.3d at 775.
Appellant also argues, in her first issue, that the State failed to present
sufficient evidence that she gave Officer Morse a false or fictitious date of birth.
Officer Morse testified that he asked appellant for her date of birth, and she
responded that her birthdate was February 18, 1994. Officer Morse acknowledged
that his supplement to the offense report stated that appellant told him that her
birthdate was February 18, 1984. Officer Pardo also testified that appellant stated
that her birthdate was February 18, 1994. Neither of these dates is accurate. The
parties agree that appellant’s correct birthdate is November 20, 1992. Appellant
testified that Officer Morse did not ask her for her birthdate and that she gave the
correct birthdate to Officer Pardo, who then wrote that date on her student
identification card. The trial court admitted a copy of this card, with the handwritten
birthdate notation, into evidence. Officer Pardo denied that he wrote appellant’s
birthdate on her identification card.
Thus, the jury heard conflicting evidence about which birthdate appellant
provided to the officers. We presume that the jury resolved the conflicts in the
evidence in favor of the verdict, and we defer to that determination. Clayton, 235
S.W.3d at 778; Curry, 30 S.W.3d at 406.
13

Appellant argues that the State “could not prove what allegedly false birthday
she gave to Officer Morse” and that this “created a juror unanimity problem” because
different jurors could believe that appellant gave different allegedly false birthdates
to Officer Morse. As the State points out, however, it was not required to plead or
prove the specific false date that appellant provided to Officer Morse, only that
appellant did provide a false or fictitious date of birth. The complaint alleged only
that appellant intentionally gave a false and fictitious date of birth to Officer Morse.
The jury heard testimony that appellant provided Officer Morse with the birthdate
of February 18, 1994, a date that was undisputedly inaccurate. The jury also heard
testimony that appellant told Officer Morse that her birthdate was February 18, 1984,
a date that was also undisputedly inaccurate. And the jury heard appellant’s
testimony that Officer Morse never asked her for her birthdate, but that she told the
correct date, November 20, 1992, to Officer Pardo. The jury could have disbelieved
appellant’s testimony and credited Officer Morse’s testimony that, regardless of
whether appellant told him that her birthdate was February 18, 1984, or February 18,
1994, neither date was accurate. We conclude that the State presented sufficient
evidence that appellant provided Officer Morse with a false and fictitious birthdate.
See TEX. PENAL CODE ANN. § 38.02(b).
14

C. Lawful Detention
There are three distinct types of interactions between law enforcement and
citizens: (1) consensual encounters; (2) investigatory detentions; and (3) arrests.
State v. Woodard, 341 S.W.3d 404, 410–11 (Tex. Crim. App. 2011). Here, the State
was also required to prove that Officer Morse lawfully detained appellant. See TEX.
PENAL CODE ANN. § 38.02(b)(2); Gonzalez v. State, 501 S.W.3d 283, 286 (Tex.
App.—Corpus Christi 2016, no pet.) (holding that “lawful detention” is element of
offense of failure to identify and, as such, defendant cannot ask trial court to rule on
legality of detention at pretrial suppression hearing). “Lawfully detained” is not
statutorily defined, but “[c]ourts have interpreted the phrase lawfully detained in
section 38.02 consistent with a Fourth Amendment analysis.” See Overshown v.
State, 329 S.W.3d 201, 208 (Tex. App.—Houston [14th Dist.] 2010, no pet.)
(emphasis in original).
No justification is required for an officer to approach and request information
from a citizen, but generally, “when an officer through force or a showing of
authority restrains a citizen’s liberty, the encounter is no longer consensual,” but it
has instead become either a detention or an arrest. Woodard, 341 S.W.3d at 411.
“[I]f there is a detention, the detaining officer must have reasonable suspicion that
the person ‘is, has been, or soon will be, engaged in criminal activity.’” Rocha v.
State, 464 S.W.3d 410, 417 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d). An
15

officer has reasonable suspicion to detain a person if the officer “has specific,
articulable facts that, combined with rational inferences from those facts, would lead
him to reasonably conclude that the person detained is, has been, or soon will be
engaged in criminal activity.” State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim.
App. 2013). “These facts must show unusual activity, some evidence that connects
the detainee to the unusual activity, and some indication that the unusual activity is
related to crime.” Id.
The standard for determining whether reasonable suspicion exists is an
objective one. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). There
only needs to be an objective basis for the detention; the subjective intent of the
officer conducting the detention is irrelevant. Id.; see also Kerwick, 393 S.W.3d at
274 (“The test for reasonable suspicion is an objective one that focuses solely on
whether an objective basis exists for the detention and disregards the officer’s
subjective intent.”). “The reasonable suspicion determination is made by
considering the totality of the circumstances.” Garcia, 43 S.W.3d at 530; see
Arguellez v. State, 409 S.W.3d 657, 663 (Tex. Crim. App. 2013) (noting that actions
in series “may each seem innocent enough in isolation,” but if actions, when
examined in context of totality of circumstances, “reasonably suggest recent or
imminent criminal conduct, an investigative detention is justified”); Kerwick, 393
S.W.3d at 274 (“A reasonable-suspicion determination requires looking at the
16

totality of the circumstances and reasonable suspicion may exist even if those
circumstances standing alone may be just as consistent with innocent activity as with
criminal activity.”). The State “need not establish with absolute certainty that a
crime has occurred in order to show reasonable suspicion.” Garcia, 43 S.W.3d at
530. However, the State must “elicit testimony of sufficient facts to create
reasonable suspicion.” Id.
Here, appellant challenges whether the State presented sufficient evidence
that her detention by Officer Morse was lawful. Appellant argues that the State
offered no evidence that Officer Morse believed appellant was engaged in or soon
would be engaged in criminal activity. She argues that Officer Morse did not testify
that appellant had done or would do anything illegal; nor did he specifically testify
that he had reasonable suspicion to believe she was engaged in criminal activity. He
instead testified only that he detained appellant for her own safety and for his safety.
The trial court instructed the jury in the charge that “‘Lawful Detention’
occurs when an officer has reasonable suspicion to believe that an individual is
violating the law. A reasonable suspicion determination is made by considering the
totality of the circumstances.” The evidence reflects that officers had an arrest
warrant for Ross at a particular address—the address at which appellant lived.
Officer Morse witnessed Ross drive a car in reverse into the driveway of the house
and then jump out of the car. Ross then ran around the side of the house and into the
17

backyard. Officer Morse followed Ross into the backyard but was impeded from
going further into the yard by appellant’s dogs. He did not see whether Ross
continued running into another yard or whether he ran into the house. Appellant
then opened the door and asked what was happening. Officer Morse testified that
he explained that he was chasing a suspect, and he asked appellant if she knew
anyone by Ross’s name. Appellant said she did not, but she also stated that the car
parked in the driveway—the car that Ross had just been driving—was her car. She
gave no explanation for why a warrant suspect, who she had just said she did not
know, was driving her car. Officer Morse then placed appellant, without handcuffs,
in the backseat of his patrol car.
The State argues that, at this point in time, Officer Morse had reasonable
suspicion that appellant was, had been, or soon would be engaged in criminal
activity, specifically, the offense of hindering apprehension of a suspect. See TEX.
PENAL CODE ANN. § 38.05(a) (West 2011) (providing that person commits offense
if “with intent to hinder the arrest, prosecution, conviction, or punishment of another
for an offense” she “harbors or conceals the other,” “provides or aids in providing
the other with any means of avoiding arrest or effecting escape,” or “warns the other
of impending discovery or apprehension”). We agree. The jury reasonably could
have concluded, based on the totality of the circumstances, that Officer Morse had
specific and articulable facts from which he could reasonably have concluded that
18

appellant knew Ross, that Ross had run inside appellant’s house, and that appellant
was stalling Officer Morse to facilitate Ross’s hiding or escape. Because the facts
justify the conclusion that Officer Morse had reasonable suspicion to believe
appellant was trying to hinder apprehension of Ross, the State presented sufficient
evidence from which the jury could conclude that Officer Morse’s detention of
appellant was lawful. See TEX. PENAL CODE ANN. § 38.02(b); Kerwick, 393 S.W.3d
at 273.
In arguing that her detention was unlawful, appellant focuses on Officer
Morse’s testimony that he detained her for her safety and for his own, arguing that
there was no evidence that appellant was in danger from Ross, who had not been
shown to have a history of hostage taking or violence, and any fear of Morse’s that
appellant would harm him was not objectively reasonable. We first note that, in
determining whether Officer Morse had reasonable suspicion to detain appellant,
Morse’s subjective intent is irrelevant. See Kerwick, 393 S.W.3d at 274 (“The test
for reasonable suspicion is an objective one that focuses solely on whether an
objective basis exists for the detention and disregards the officer’s subjective
intent.”); see also Garcia, 43 S.W.3d at 530 (stating that because reasonable
suspicion is objective determination, officer’s motives in conducting traffic stop
were irrelevant to validity of stop). Thus, the fact that Officer Morse did not
specifically testify that he had reasonable suspicion appellant was involved in
19

criminal activity does not, by itself, render the evidence insufficient to support
appellant’s conviction.
The State presented evidence that an objective basis existed that appellant was
potentially involved with harboring Ross. See Kerwick, 393 S.W.3d at 274 (“A
reasonable-suspicion determination requires looking at the totality of the
circumstances and reasonable suspicion may exist even if those circumstances
standing alone may be just as consistent with innocent activity as with criminal
activity.”). Furthermore, in testifying that he detained appellant for her safety and
his safety, Officer Morse also stated that he did not know whether Ross had run into
the house and he did not know whether appellant, whom Morse did not know, was
related to or connected with Ross. As we have held, despite appellant’s protestations
that she did not know Ross, the State presented evidence that Officer Morse
reasonably could have believed that appellant was not being truthful when she
denied knowing Ross: namely, evidence that Ross had been driving appellant’s car
immediately prior to fleeing and appellant’s lack of explanation for why a man she
supposedly did not know was driving her car and pulled into her driveway, jumped
out of the car, and ran behind the house.
20

We hold that the State presented sufficient evidence that Officer Morse had
reasonable suspicion to detain appellant and, thus, that her detention was lawful.5
See TEX. PENAL CODE ANN. § 38.02(b); Kerwick, 393 S.W.3d at 273.
We overrule appellant’s sole issue.

Outcome:

We affirm the judgment of the trial court.

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
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