In the Court of Appeals for the Fifth District of Texas at Dallas

Transcription

1 In the Court of Appeals for the Fifth District of Texas at Dallas TEOFILIA ALEJANDRO SALGADO Appellant v. No CR THE STATE OF TEXAS, Appellee Trial Number in the County Court at Law No. 4, Collin County The Honorable David Rippel, Judge Presiding STATE S BRIEF John R. Roach Criminal District Attorney Collin County, Texas John R. Rolater, Jr. Assistant Criminal District Attorney Chief of the Appellate Division Justin Johnson Oral argument Assistant Criminal District Attorney is requested Bloomdale Road, Suite McKinney, TX (972) FAX (214) SBN Jack Ormond Assistant Criminal District Attorney

2 TABLE OF CONTENTS TABLE OF CONTENTS...i INDEX OF AUTHORITIES...ii STATEMENT OF THE CASE...1 STATEMENT OF FACTS...1 SUMMARY OF THE STATE S ARGUMENTS...3 ARGUMENT & AUTHORITIES...3 I. Standard of review...3 II. The evidence is legally sufficient to support Appellant s conviction for resisting arrest...4 A. Appellant used force in excess of mere non-cooperation...4 B. Appellant s actions were directed against Officer Tyler...8 C. Current case law favors a more inclusive interpretation of force against a peace officer...9 CONCLUSION...11 PRAYER...12 CERTIFICATE OF SERVICE...12 i

3 INDEX OF AUTHORITIES Statutes, Codes, and Rules TEX. CODE CRIM. PROC. art , 4 TEX. PEN. CODE (b)...6 TEX. PEN. CODE TEX. PEN. CODE TEX. PEN. CODE Cases Bonham v. State, 680 S.W.2d 815 (Tex. Crim. App. 1984)...3 Bryant v. State, 923 S.W.2d 199 (Tex. App. Waco 1996, pet. ref d)...5 Campbell v. State, 128 S.W.3d 662 (Tex. App. - Waco 2003, no pet.)...4 Chambers v. State, 866 S.W.2d 9 (Tex. Crim. App. 1993)...3 Dumas v. State, 812 S.W.2d 611 (Tex. App. Dallas 1991, pet. ref d)...3 Hartis v. State, 183 S.W.3d 793 (Tex. App. - Houston [14th Dist.] 2005, no pet.)...10 Hopper v. State, 86 S.W.3d 676 (Tex. App. - El Paso 2002, no pet.)...4, 7, 9 Jackson v. State, Nos CR, CR, 2010 WL (Tex. App. Dallas, Sept. 29, 2010) (not designated for publication)...5 ii

4 Jackson v. Virginia, 443 U.S. 307 (1979)...3 Land v. State, Nos CR, CR, 2010 WL (Tex. App. Dallas, August 10, 2010) (not designated for publication)...5 Leos v. State, 880 S.W.2d 180 (Tex. App. - Corpus Christi 1994, no pet.)...4 Lewis v. State, 30 S.W.3d 510 (Tex. App. - Amarillo 2000, no pet.)...10 Paternostro v. State, Nos CR, CR 1992 WL (Tex. App. Dallas, May 22, 1992) (not designated for publication)...5 Pumphrey v. State, 245 S.W.3d 85 (Tex. App. Texarkana 2008, pet. ref d)...4, 6, 10 Raymond v. State, 640 S.W.2d 678 (Tex. App. El Paso 1982, pet. ref d)...7 Sheehan v. State, 201 S.W.3d 820 (Tex. App.-Waco 2006, no pet.)...7, 8 Torres v. State, 103 S.W.3d 623 (Tex. App. - San Antonio 2003, no pet.)...10 Washington v. State, 525 S.W.2d 189 (Tex. Crim. App. 1975)...9 iii

5 In the Court of Appeals for the Fifth District of Texas at Dallas TEOFILA ALEJANDRO SALGADO Appellant v. No CR THE STATE OF TEXAS, Appellee TO THE HONORABLE COURT OF APPEALS: STATEMENT OF THE CASE Appellant was charged by information with resisting arrest, a class A misdemeanor. CR 6; TEX. PEN. CODE Appellant pled not guilty and was convicted in a bench trial. 1 RR 5, 52. The court assessed punishment at a $750 fine, and one year confinement in jail suspended for two years with sex offender caseload. RR This appeal follows. STATEMENT OF FACTS The Plano Police Department investigated Appellant for sexual assault of a ten year old child. RR Officer Daniel Tyler spoke with Appellant off and on for about two and a half hours. RR 12. Appellant spoke in a raised voice and seemed agitated. RR 18. During this time, Appellant made repeated comments 1 Although the judgment erroneously reflects that the defendant pled guilty, the transcript and the parties agree that Appellant pled not guilty in a bench trial. RR 27. 1

6 about the child s hot ass and large titties while gesturing suggestively, much to the vexation of the child s family members. RR 24, 25. Throughout this two and a half hour process, Appellant told Officer Tyler that he was just a police officer with an inflated ego, and also mentioned to Officer Tyler that he had previously beaten up a New Mexico State Trooper. RR Appellant then threatened to assault Officer Tyler if he ever saw him out with his family. RR 31. Again, Appellant gestured suggestively. Id. Appellant made these comments in a tone described as serious, and at one point said I m going to kick your ass. RR Eventually, Officer Tyler grabbed Appellant s arm, told him to stand up, and said he was under arrest. RR 35. Appellant pulled his arm away from Officer Tyler toward the center of Appellant s chest, and pulled away from Officer Tyler with his whole body. Id. Officer Tyler was able to get one of Appellant s arms behind Appellant s back, but Appellant twisted his body around to face Officer Tyler. Id. This forced Officer Tyler to place Appellant in an arm bar and take him to the ground. RR 36. All of Appellant s movements were described as pulling away. Id. 2

7 SUMMARY OF THE STATE S ARGUMENTS The evidence is legally sufficient to sustain the conviction. Appellant used force in opposition to a peace officer by pulling his arm to his chest, pulling away from the officer with his whole body, and by twisting to face the officer, thereby applying forces away from and in opposition to the officer, all while the officer was attempting to arrest Appellant. ARGUMENT & AUTHORITIES I. Standard of Review Appellant challenges the legal sufficiency of the evidence. Appellant s Brief at 3. In reviewing the legal sufficiency of the evidence, this Court must view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Chambers v. State, 866 S.W.2d 9, 15 (Tex. Crim. App. 1993). This standard leaves to the factfinder the responsibility to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic to ultimate facts. See Dumas v. State, 812 S.W.2d 611, 615 (Tex. App. Dallas 1991, pet. ref d). The fact-finder is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. See Tex. Code Crim. Proc. Ann. art (Vernon 1979); Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984); Dumas, 812 S.W.2d at

8 II. The evidence is legally sufficient to support Appellant s conviction for resisting arrest Appellant argues that his non-cooperation fell short of the force requirement found in Brief for Appellant at 5. Alternatively, Appellant argues that any force used was not directed toward Officer Tyler. Brief for Appellant at 8. These points will be addressed in order. A. Appellant used force in excess of mere non-cooperation Refusing to cooperate with being arrested does not in and of itself constitute resisting arrest by force. Campbell v. State, 128 S.W.3d 662, 671 (Tex. App. Waco 2003, no pet.). Merely trying to flee does not involve sufficient force to sustain a conviction for resisting arrest. Leos v. State, 880 S.W.2d 180, 184 (Tex. App. Corpus Christi 1994, no pet.). However, once a person begins to struggle during an arrest attempt, he is guilty of resisting arrest. For example, a person who uses force to shake off an officer s detaining grip, whether by pushing or pulling, may be guilty of resisting arrest. Hopper v. State, 86 S.W.3d 676, 679 (Tex. App. El Paso 2002, no pet.). Even if the defendant does not shake off the officer s detaining grip, he is still guilty for actively pulling against an officer s established grasp. Pumphrey v. State, 245 S.W.3d 85, 89 (Tex. App. Texarkana 2008, pet. ref d). Twisting, jerking, turning, and squirming will also satisfy the statute. Id. Stiffening up, jerking back, and swinging one s body around in an 4

9 attempt to face an officer head-on is sufficient to support conviction. Bryant v. State, 923 S.W.2d 199, 208 (Tex. App. Waco 1996, pet. ref d). In unpublished cases, this Court has applied the same principles, and should continue to do so. In Paternostro v. State, this Court held that a defendant was guilty of resisting arrest where he attempted to strike an officer, and then physically struggled with the officer. Nos CR, CR, 1992 WL at *5 (Tex. App. Dallas, May 22, 1992) (not designated for publication). In Land v. State, this Court held that evidence that a defendant repeatedly pulled his arms away from an officer and continued to fight allowed the jury to infer the use of force against the officer beyond a reasonable doubt. Nos CR, CR, 2010 WL at *8 (Tex. App. Dallas, August 10, 2010) (not designated for publication). And in Jackson v. State, this Court reached a similar result in deciding that a jury could reasonably convict for pulling away from an officer s grasp and by striking at an officer. Nos CR, CR, 2010 WL at *4 (Tex. App. Dallas, Sept. 29, 2010) (not designated for publication). Here, Appellant drew his arm closer to his chest after Officer Tyler placed his hand on Appellant s arm, thereby pulling against Officer Tyler s established grasp. RR 35. Appellant next pulled away with his whole body against Officer Tyler s established grasp and then twisted around to face Officer Tyler in an effort to thwart being handcuffed. Id. Under the logic set out by the Pumphrey court and this Court, Appellant s conviction should be affirmed. 5

10 Appellant attempts to distinguish Pumphrey in part by noting that the officer in Pumphrey was surrounded by a large crowd, without sufficient support from other officers. Brief for Appellant at 11. However, this should not be part of the analysis, as Tex. Pen. Code does not require that the offender s actions place an officer in any danger. Considerations such as the presence of crowds, the availability of backup officers, or the level of danger presented to the officer are simply not elements to a prosecution. The Texarkana court correctly noted that there is no requirement that an officer be placed in danger in order to sustain a conviction. Pumphrey, 245 S.W.3d at 91. Had the legislature wanted to include a danger or risk of harm element, it could have done so, as it has elsewhere in the penal code. See, e.g., TEX. PEN. CODE (b) (Abandoning or Endangering Child requires an unreasonable risk of harm); (Deadly Conduct requires imminent danger of serious bodily injury); (Robbery requires fear of imminent bodily injury or death). Moreover, to the extent that the issue of risk or danger is relevant to the Court s sufficiency analysis, the record as a whole reflects a volatile situation. Appellant threatened harm to Officer Tyler specifically. RR Appellant had been drinking, and Officer Tyler found a knife at the scene. RR At one point, Appellant tried to face Officer Tyler with one of his hands still free. RR 35. The situation was not one in which fighting with police was safe for anyone. Appellant also urges a slippery slope argument with respect to the ruling in Pumphrey and raises hypotheticals suggesting that the Pumphrey rule will 6

11 criminalize a range of conduct not previously covered by the statute. Brief for Appellant at 12. Nevertheless, the fact that the State must always prove an intent to prevent or obstruct an arrest beyond a reasonable doubt will adequately protect future defendants. Appellant cites Raymond v. State for the proposition that aggressive jerking of one s arm out of police grasp does not qualify as resisting arrest. 640 S.W.2d 678, 679 (Tex. App. El Paso 1982, pet. ref d); Brief for Appellant at 5. Raymond has since been disavowed, but even if Raymond applied, it is distinguishable from the instant case. See Hopper, 86 S.W.3d at 679 (disavowing language in Raymond and holding that a person who uses force to shake off an officer s detaining grip, whether by pushing or pulling, may be guilty of resisting arrest). The defendant in Raymond pulled his arm from the officer s grasp twice, and then submitted. Raymond, 640 S.W.2d at 679. Here, Appellant did quite a bit more. He pulled his arm away from Officer Tyler, and then pulled away with his whole body. RR 35. He next twisted to face Officer Tyler with one hand still free. Id. At no point did Appellant submit to the arrest. In fact, he forced Officer Tyler to use an arm bar and take him to the ground. RR 36. Appellant put forth considerably more resistance than the defendant in Raymond, so Raymond is not controlling even if it were a viable authority. Appellant cites Sheehan for the proposition that passive non-cooperation does not amount to resisting arrest. Sheehan v. State, 201 S.W.3d at 823 (Tex. App.-Waco 2006, no pet.); Brief for Appellant at 5. Sheehan is of questionable 7

12 authority, since the court did not decide the issue, but rather, for reasons unclear in the opinion, the State conceded the point. Id. The Sheehan court engaged in the irrelevant danger of injury analysis, and wrote: In this case, there was no evidence of danger of injury to the officers from Sheehan s passive non-cooperation, and thus there was no evidence that Sheehan used force against the officers. Id. at 823 (emphasis added). The Sheehan logic is flawed because it says since there was no danger of injury to the officer, there was ipso facto no force used against the officer. Following this logic would simply require the State to prove a danger element that is not required by the statute nor intended by the legislature. Additionally, Appellant s demonstrated disdain for law enforcement shows his intent to actively resist, and not merely refuse to participate in his own arrest. The trier of fact was entitled to consider Appellant s threats toward Officer Tyler as they were relevant to his intent to use force to resist arrest. In any event, this Appellant pulled against Officer Tyler s established grasp with his arm and with his body, and maneuvered his body to prevent Officer Tyler from completing the arrest. This easily goes beyond mere non-cooperation, and caselaw holds as much. B. Appellant s actions were directed against at Officer Tyler Appellant next argues that even if he did use force against Officer Tyler as he clearly did that he did not direct the force toward Officer Tyler. Brief for 8

13 Appellant at 8. However, the Court of Criminal Appeals settled this issue in 1975 when it held that pulling away from and struggling with officers constitutes the use of force. Washington v. State, 525 S.W.2d 189, 190 (Tex. Crim. App. 1975). In Washington, a 240 pound woman dragged two police officers eight to ten feet while the officers were trying to arrest her. Id. The opinion in Washington does not reflect that she tried to hit, kick, or do anything to the officers other than pull away and struggle with them, and the facts in Washington are similar to those at issue here. In the case at hand, Appellant pulled away from Officer Tyler and struggled with him. Although Appellant did not pull Officer Tyler eight to ten feet, as in Washington, there is no minimum force requirement under the statue or caselaw, and the holding in Washington should control. C. Current case law favors a more inclusive interpretation of force against a peace officer Moreover, the trend in case law is toward a more inclusive view of the direction of and types of forces that will satisfy the statute. In 1996, the Waco Court of Appeals disagreed with Leos and Raymond and ruled that one who uses force to shake off an officer s detaining grip, whether by pushing or pulling, may be guilty of resisting arrest. Bryant, 923 S.W.2d at In 2002 the El Paso court issued its opinion in Hopper holding that a person who uses force, whether pushing or pulling, may be guilty, and strongly criticizing Raymond. Hopper, 86 S.W.3d at 679. The next year the San Antonio Court of Appeals rejected the 9

14 toward/pulling away distinction and held that a defendant who raised his arm and knocked the officer s hand away as the officer attempted to grab the defendant to handcuff him was guilty of resisting arrest. Torres v. State, 103 S.W.3d 623, (Tex. App. San Antonio 2003, no pet.). In 2005, the 14th District Court of Appeals rejected a defendant s insufficiency claim where the defendant only applied twisting and pulling forces. Hartis v. State, 183 S.W.3d 793, 803-4, (Tex. App. Houston [14th Dist.] 2005, no pet.). Instead, that court found evidence that the defendant twisted, pulled, and caused a struggle was sufficient to support the conviction for resisting arrest. Id. at 804. In 2008, the Texarkana Court of Appeals dealt another blow to the Raymond/Leos line of cases in holding that does not require action directed at or toward an officer, but rather force exerted in opposition to the officer s efforts at making an arrest. Pumphrey, 245 S.W.3d at 91. Thus, the trend in caselaw is that where force is used, the type or direction of force does not matter. While not cited by Appellant, in Lewis v. State the Amarillo Court of Appeals assumed arguendo that pulling away from an officer is not sufficient to constitute resisting arrest. 30 S.W.3d 510, 513 (Tex. App. Amarillo 2000, no pet.). The court still found that the evidence proved more than mere pulling away, but rather a struggle, and that the officer and the defendant collided and bump[ed] back and forth so much that they lost their balance and fell. Id. This evidence was sufficient to permit a rational jury to find the exertion of physical force against the officer beyond a reasonable doubt. Id. 10

15 So, even if Appellant only applied pulling forces, he is guilty. But like the defendant in Lewis, Appellant did more than merely pull on Officer Tyler. Appellant also brought his arm to the center of his chest to avoid handcuffs. He pulled away from Officer Tyler with his whole body and turned his body to face Officer Tyler. RR 35. Appellant struggled with Officer Tyler to the extent that Officer Tyler found it necessary to take him to the ground in an arm bar. RR 36. Any arrest that results in the parties going to the ground, one in an arm bar, is not an arrest going smoothly. Like the defendants in Pumphry, Bryant, Torres, Hartis, and Lewis, Appellant used force calculated to obstruct his arrest. Officer Tyler felt those forces. RR 36. Accordingly, Appellant s conviction should be affirmed. CONCLUSION Had the legislature wished to craft a law that said, to be guilty, a person must apply more than X pounds of force with the center of pressure applied at the midline of the officer s head or chest, plus or minus Y degrees, it could have crafted just such an unworkable law. The fact that it did not implies an intent that common sense rule the day. Any force used in opposition to a peace officer intended to prevent or obstruct an arrest should support a conviction. Viewing the evidence in a light most favorable to the verdict, and applying common sense to the text of the statute, the evidence is sufficient to allow a rational trier of fact to find all elements of the offense proven beyond a reasonable doubt. 11

16 PRAYER Appellant s trial was free of error. The State prays that this Court affirm Appellant s conviction and sentence. Respectfully submitted, John R. Roach Criminal District Attorney Collin County, Texas John R. Rolater, Jr. Assistant Criminal District Attorney Chief of the Appellate Division CERTIFICATE OF SERVICE /s/ Justin Johnson Justin Johnson Assistant Criminal District Attorney 2100 Bloomdale Road, Suite McKinney, TX SBN (972) FAX (214) ATTORNEY FOR THE STATE The State has provided a true copy of its brief by first-class mail to counsel for Appellant, Paul Key, 200 W. Virginia Street, McKinney, TX 75069, on this the 30th day of December, /s/ Justin Johnson Justin Johnson 12