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Powell v. State - 206 S.W.3d 142 (Tex. App. 2006)


The elements of the offense of evading arrest in a vehicle are: (1) a person, (2) intentionally flees, (3) from a peace officer, (4) with knowledge he or she is a peace officer, (5) the peace officer is attempting to arrest or detain the person, (6) the attempted arrest or detention is lawful, and (7) the person uses a vehicle while in flight. Tex. Penal Code Ann. § 38.04 (2003). The elements for evading on foot vary from the elements of evading by vehicle only by omission of the seventh element. Thus, evading on foot is included within the proof necessary to prove evading by vehicle. 


An officer who was directing traffic asked to see defendant Michael Powell's license and proof of insurance. Defendant said he did not have them and put the car in gear. The officer warned defendant that, if he drove away, he could be charged with fleeing in a vehicle. Defendant did not heed the warning and drove away. The officer ran to his patrol car to give chase. Defendant abandoned the car about 250 feet from the initial encounter and continued his flight on foot. At trial in Texas state court, a jury convicted him of evading arrest in a vehicle, elevated by a prior evading arrest conviction to the level of a third degree felony. On appeal, defendant contended that he was guilty only of the lesser-included offense of evading arrest on foot.


Was defendant properly convicted of evading arrest in a vehicle?




The appellate court affirmed the trial court's judgment, holding that defendant's conviction was proper. The court held that Texas law did not require that a person use a vehicle every moment the person was in flight. Rather, the statute required use of a vehicle while the actor was in flight. Thus, under the plain language of the statute, a person who used a vehicle during some part of a flight from a peace officer committed the offense of evading by vehicle.

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