Date: 09-25-2020

Case Style:

Case Number: 02-19-00369-CR

Judge: Wade Birdwell

Court: Court of Appeals Second Appellate District of Texas at Fort Worth

Plaintiff's Attorney: Andrea Simmons
Matthew J. Whitten

Defendant's Attorney:

Description: Denton, TX - criminal defense attorney, misdemeanor evading arrest


Appellant Lucas Bertotti challenges the sufficiency of the evidence to support
his conviction for misdemeanor evading arrest. We affirm.
In 2019, a postal inspector notified detectives that he had intercepted a package
with narcotics in it. Officers conducted a controlled delivery in which they allowed the
package to be delivered and waited for someone to pick it up. Kyle Bonham picked up
the package, and officers arrested him. Bonham gave officers consent to search his
apartment for contraband.
When Detective Adam Frederick approached the apartment with his team, they
smelled the odor of marijuana emanating from inside. Bonham opened the door, and
the officers rushed in with guns drawn and shouted, “Police department, don’t move.”1

Officers detained two occupants of the apartment.
Police soon learned, however, that there had been four people in the apartment.
A third person, Justin Stout, had jumped off the balcony and lay crumpled with a broken
leg on the ground.
The question in this appeal is whether there is sufficient evidence to show that
Bertotti was the fourth person. At trial, the State’s theory was that Bertotti had also
jumped off the balcony as police entered the apartment, but that unlike Stout, Bertotti
had made a safe landing and run away.
1
The first two officers inside were wearing clothing with police patches as well
as black bullet-proof vests with “Police” written on them.
3
To that end, Detective Frederick testified that as he entered the apartment, he
saw movement on the balcony, though he could not definitively make out a face or
what the person was doing.2
Detective John Martinez testified that around the same
time, he was just driving up to the apartment, and he saw Bertotti sprinting away from
the area in pants and sandals. Detective Martinez testified that it was common for
people to try to elude arrest by jumping off balconies, but it did not occur to him that
Bertotti might be fleeing the scene until he arrived at the apartment and learned that
officers were looking for a fourth person.
Detective Martinez doubled back to his vehicle and went in the direction that he
saw Bertotti heading. According to Detective Martinez, as he drove, he saw Bertotti
running and looking over his shoulder to see if anyone was following him. Detective
Martinez testified that he pulled in front of Bertotti, got out with his Taser drawn and
his police vest on, and shouted, “Stop police, stop police.” Bertotti did as instructed.
By Detective Martinez’s account, Bertotti was exhausted and breathing heavily,
but he did not seem to be surprised by the detention. Detective Martinez testified, and
his body camera footage confirmed, that Bertotti said, “What’s going on?” Detective
Martinez said, “You tell me, you’re the one running.” Bertotti replied, “You saw me
running” and “Ha, ha, damn.” According to Detective Martinez, Bertotti did not seem
2
Detective Frederick conceded that the video from his body camera did not
appear to show movement on the balcony, but he believed that this was due to the
limitations of the camera as compared to the human eye.
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surprised when he was taken back to the apartment. Based on their investigation,
officers came to believe that Bertotti lived at the apartment.
Bertotti recalled events differently. In Bertotti’s telling, he admitted that prior to
the day in question, he had been in the apartment many times. However, he maintained
that he did not live at the apartment and had not been in the apartment on the day of
the raid. Instead, he had been at his friend Daniel’s apartment in the same complex
when Stout texted him, inviting him over to smoke marijuana. Bertotti testified that he
walked towards Stout’s apartment, and he was nearing the apartment when he saw
police pull up. According to Bertotti, he paused beneath the balcony for roughly ten
seconds. It was then, in Bertotti’s account, that his friend Stout fell on him from above.
On cross-examination, Bertotti was confronted with the fact that body cameras showed
that roughly two minutes, not ten seconds, passed between the time police pulled up
and when they entered the apartment. Regardless, Bertotti testified that after Stout fell
on him, he wanted to get away from the scene of the raid, so he began walking briskly
back to Daniel’s apartment. Bertotti said he stopped halfway to make calls to warn
people about the raid, but no one picked up, so he began sprinting toward Daniel’s
apartment while looking over his shoulder. He recalled that he had tired of running
and had resumed walking towards Daniel’s apartment when Detective Martinez pulled
up and detained him. According to Bertotti, he did not know why he was being
arrested.
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In his sole point on appeal, Bertotti asserts that the trial court erred in denying
his motion for directed verdict. Bertotti challenges the legal sufficiency of the evidence
to establish his identity as a person who fled from police. He does not dispute that if
he were in the apartment, the evidence would be sufficient to demonstrate that he
evaded arrest. However, he asserts that there is no evidence beyond thin conjecture
and “imagination” to place him within the apartment to begin with. To the contrary,
we hold that the circumstantial evidence is sufficient to establish Bertotti’s presence in
the apartment.
A person commits the offense of evading arrest or detention if he intentionally
flees from a person he knows is a peace officer attempting lawfully to arrest or detain
him. Tex. Penal Code Ann. § 38.04(a). We review a challenge to the denial of a motion
for directed verdict as a challenge to the legal sufficiency of the evidence. Lucio v. State,
351 S.W.3d 878, 905 (Tex. Crim. App. 2011) (citing Williams v. State, 937 S.W.2d 479,
482 (Tex. Crim. App. 1996)). In our evidentiary-sufficiency review, we view all the
evidence in the light most favorable to the verdict to determine whether any rational
factfinder could have found the crime’s essential elements beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Queeman v. State, 520
S.W.3d 616, 622 (Tex. Crim. App. 2017). We must presume that the factfinder resolved
any conflicting inferences in favor of the verdict, and we defer to that resolution. Murray
v. State, 457 S.W.3d 446, 448–49 (Tex. Crim. App. 2015). The standard of review is the
same for direct and circumstantial evidence; circumstantial evidence is as probative as
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direct evidence in establishing guilt. Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim.
App. 2016). Thus, the State may prove a defendant’s identity by either direct or
circumstantial evidence, coupled with all reasonable inferences from that evidence.
Gardner v. State, 306 S.W.3d 274, 285 (Tex. Crim. App. 2009).
Though no officer directly saw Bertotti in the apartment, the circumstantial
evidence nonetheless pointed to his presence there. There was evidence that Bertotti
lived at the apartment. There was also evidence that four people were in the apartment
before the raid but that only three of those people were accounted for. Officers saw a
flash of movement on the balcony as they entered the apartment. The jury heard
testimony that it was common for people to try to evade detention by jumping off of
balconies. Police testified, and Bertotti admitted, that he was in the immediate vicinity
during the raid and when his friend Stout jumped from the balcony. It was also
undisputed that an exhausted Bertotti was apprehended sprinting away from the
apartment while looking over his shoulder to see if anyone was following him.
According to police testimony, Bertotti was unsurprised by his detention and laughingly
said “damn” when the officer related that he had seen Bertotti running from the area.
It was simply for the jury to determine whether the police’s version or Bertotti’s
version was the more plausible explanation for Bertotti’s presence at and flight from
the scene. In the police’s account, Bertotti jumped from the balcony in an attempt to
evade detention, just as Stout had done. In Bertotti’s account, he happened to be
walking toward the apartment (with an intent to smoke the marijuana that police had
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already smelled wafting from the apartment) when Stout fell on him from above, and
then Bertotti sprinted away without attending to his friend even though he had not
done anything wrong. The jury could have rationally believed that Bertotti’s tale—an
extraordinary coincidence that placed him just near enough to the apartment to explain
his presence in the vicinity but not so close that he could be held criminally liable—was
the less credible of the two. We defer to the jury’s resolution of that credibility question.
See Murray, 457 S.W.3d at 448–49.
We therefore hold that the evidence is legally sufficient to support the only aspect
of the case that Bertotti has challenged.3
The trial court did not err in denying Bertotti’s
3
In his brief, Bertotti also cites a variety of concepts that are past their legal shelflife. For instance, Bertotti argues, “This case is one based on factual sufficiency,” and
he offers an extended summary of Watson v. State, apparently in defense of the view that
factual-sufficiency review remains a viable means of attacking the State’s case. See
generally 204 S.W.3d 404, 406–15 (Tex. Crim. App. 2006). However, factual-sufficiency
review was largely done away with in Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.
App. 2010). Bertotti also raises an argument based on the following language from King
v. State: “[a] conviction based on circumstantial evidence cannot be sustained if the
circumstances do not exclude every other reasonable hypothesis except that of the guilt
of the defendant; proof amounting only to a strong suspicion or mere probability is
insufficient.” 638 S.W.2d 903, 904 (Tex. Crim. App. [Panel Op.] 1982). However, that
sort of reasonable-hypothesis analysis was disposed of in Geesa v. State, 820 S.W.2d 154,
159–61 (Tex. Crim. App. 1991), overruled on other grounds by Paulson v. State, 28 S.W.3d
570, 571 (Tex. Crim. App. 2000); see Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App.
2012). Because these forms of review are no longer good law in Texas, we do not
consider Bertotti’s arguments based on them. See Tex. Standards App. Conduct,
Lawyer’s Duties to the Court 4; see also Tex. Disciplinary R. Prof’l Conduct 3.03, reprinted
in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A. Instead, we confine our discussion
to Bertotti’s legal-sufficiency challenge.
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motion for directed verdict.

Outcome: We overrule Bertotti’s sole point and affirm the trial court’s
judgment of conviction.

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