Mark Alan Evans v. State

Opinion issued January 8, 2009 In The Court of Appeals For The First District of Texas NO. 01-08-00128-CR MARK ALAN EVANS, Appellant v. THE STATE OF TEXAS, Appellee On Appeal from County Court at Law No. 3 Galveston County, Texas Trial Court Cause No. 264606 MEMORANDUM OPINION A jury found appellant, Mark Alan Evans, guilty of the misdemeanor offense of resisting arrest. The trial court sentenced appellant to 180 days in jail and a $600 fine. The trial court suspended appellant’s sentence and placed him on community supervision for 12 months. In one issue, appellant challenges the factual sufficiency of the evidence to support his conviction. We affirm. Background On November 7, 2007, the Texas City Fire Department went to the scene of a large trash fire on property owned by Jamie Nobles. When fire department personnel arrived, the only person they found at the scene was appellant, who worked on the property. Appellant told fire personnel that Nobles had recently left the property after starting the fire. The department determined that no permit had been obtained for the fire. The Texas City fire marshal, Captain K. Rothrock, soon arrived. Because appellant was the only person present, Captain Rothrock determined that appellant was in “control” of the property. Captain Rothrock attempted to issue a citation to appellant for illegal burning. Both she and Captain R. Ebert of the Texas City fire department explained to appellant that signing the citation was not an admission of guilt. Instead, they explained, it was a promise to appear in court for the offense. At some point, Captain Rothrock handed appellant the citation booklet. Using profanity, appellant refused to sign the citation. Captain Rothrock and Captain Ebert each made three or four requests for appellant to sign the citation. Appellant refused. Based on appellant’s repeated refusals to sign the citation and his vulgar language, Captain Rothrock informed appellant that he would be placed under arrest. Captain Rothrock, who is a certified peace officer, walked to her truck to get her handcuffs. At that point, appellant stated, in a profane manner, that he would sign the citation and asked Captain Rothrock for a pen. Captain Rothrock did not give appellant a pen. Appellant scooped up some mud with his finger and stated that he would sign the citation with the mud. Captain Rothrock informed appellant that he was under arrest for illegal burning and for refusing to sign the citation. When Captain Rothrock attempted to handcuff him, appellant began swinging his arms and stated that he was not going to jail. A Galveston County deputy constable also attempted to handcuff appellant. Appellant continued to swing his arms and wrestle with Captain Rothrock and the deputy constable. Capatin Rothrock pepper sprayed appellant but he continued to “fling” his arms and to fight the officers. At one point, appellant slammed the officers into a garage door, and Captain Rothrock hit her head. Captain Rothrock grabbed appellant’s pant leg and was able to throw him off his feet. A third officer—a Texas City police officer—was finally able to handcuff appellant. Factual Sufficiency In one issue, appellant challenges the factual sufficiency of the evidence to support his conviction for resisting arrest. A. Standard of Review A factual sufficiency review requires us to view all of the evidence in a neutral light and ask whether the jury was rationally justified in finding guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). Evidence is factually insufficient (1) when the evidence supporting the conviction is so weak that the verdict seems clearly wrong and manifestly unjust, or (2) when the evidence supporting the conviction is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007); see Sanchez, 243 S.W.3d at 72. We cannot reverse when the greater weight and preponderance of the evidence actually favors conviction. Roberts, 220 S.W.3d at 524. And we may not substitute our judgment for that of the jury merely because we would have reached a different result. See Watson, 204 S.W.3d at 414. Instead, the record must show some objective basis for concluding that the great weight and preponderance of the evidence contradicts the jury’s verdict. See id. at 417. In conducting a factual-sufficiency review, we must discuss the evidence that, according to the appellant, most undermines the jury’s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). B. Analysis Pursuant to Penal Code section 38.03, a person commits the misdemeanor offense of resisting arrest “if he intentionally prevents or obstructs a person he knows is a peace officer . . . from effecting an arrest, search, or transportation of the actor or another by using force against the peace officer.” Tex. Penal Code Ann. § 38.03 (Vernon 2003). To support his factual sufficiency challenge, appellant contends that the credible evidence did not show that he used force against a peace officer. Appellant argues that a person does not commit the offense of resisting arrest simply by jerking or pulling away to avoid arrest. Appellant cites Captain Ebert’s testimony that appellant was “flinging” his arm to avoid being handcuffed and was “doing whatever he could to keep [Captain Rothrock] away from him.” Appellant relies on case authority that non-cooperation with an arrest is not an act of “use of force against” a peace officer under section 38.03. See, e.g., Raymond v. State, 640 S.W.2d 678, 679 (Tex. App.—El Paso 1982, pet. ref’d) (holding that evidence defendant simply pulled away was insufficient to show use of force against officer). In contrast, courts have also held that section 38.03 does not require that a defendant engage in action directed at or toward an officer; rather, the statute requires only that the defendant exert force in opposition to an officer’s efforts to make an arrest. See Pumphrey v. State, 245 S.W.3d 85, 91 (Tex. App.—Texarkana 2008, pet. ref’d). In any event, here, the State presented evidence that appellant did more than simply pull away or passively resist arrest. In addition to Captain Ebert’s testimony cited by appellant, Captain Ebert also testified that appellant, Captain Rothrock and the deputy constable “ended up wrestling up against the door of the garage and then on the ground.” Captain Rothrock’s testimony also showed that appellant used force against her. Captain Rothrock testified that appellant was struggling and fighting with her and the deputy constable. She testified that appellant had “locked up” on her and the deputy constable and would not free them. Captain Rothrock told the jury that appellant ultimately slammed her and the deputy constable into the garage. Such evidence is factually sufficient to show that appellant used force against Captain Rothrock when she was attempting to arrest him. See Pumphrey, 245 S.W.3d at 91 (holding that forcefully pulling away from officer’s restraining grasp showed use of force against officer); Luxton v. State, 941 S.W.2d 339, 340–41 (Tex. App.—Fort Worth 1997, no pet.) (concluding that evidence that defendant was pulling away, plus struggling or fighting with officers, was sufficient to support resisting arrest conviction). To support his factual sufficiency challenge, appellant also attacks the credibility of Captain Rothrock. Appellant contends that her testimony was “weak and unreliable” because the record shows that Captain Rothrock was “a clearly biased and antagonistic witness.” In this regard, appellant points out the following: • The owner of the property, Jamie Nobles, and appellant’s wife each spoke to Captain Rothrock on the telephone at the time of the incident. They each testified that Captain Rothrock was rude, disrespectful, and hostile. • Captain Rothrock was the “victim” of the offense with which appellant is charged. • After she had decided to arrest appellant and had informed him that he would be arrested, Captain Rothrock would not give appellant a pen to sign the citation, even though he was then willing to sign. • Captain Ebert’s testimony and Captain Rothrock’s testimony differed with respect to when Captain Rothrock handed appellant the citation booklet. • Captain Rothrock was trained to use minimum force to effectuate “her law enforcement goals” and “knew the power to arrest an accused or issue a citation was within her discretion.” Captain Rothrock did not use minimal force or exercise her discretion; instead, Captain Rothrock refused to give appellant a pen to sign the citation. • No other evidence was offered to support Captain Rothrock’s testimony that appellant had slammed her head into the garage or her testimony that she removed a knife from appellant’s pants during the struggle. In this case, the jury apparently chose to believe Captain Rothrock. The jury found Captain Rothrock credible, even after considering the defense’s cross-examination and arguments. We must give due deference to the jury’s credibility finding. See Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). Based on the record before us and the contentions asserted by appellant challenging the factual sufficiency of the evidence, the jury in this case was in the best position to evaluate the witnesses’ credibility and to weigh the evidence. We give proper deference to those determinations. See id. After reviewing all of the evidence in a neutral light, we cannot conclude that the evidence supporting the conviction is so weak that the verdict seems clearly wrong and manifestly unjust, or that the evidence supporting the conviction is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. See Roberts, 220 S.W.3d at 524. We hold that the evidence is factually sufficient to support the judgment of conviction. We overrule appellant’s sole issue. Conclusion We affirm the judgment of the trial court. Laura Carter Higley Justice Panel consists of Chief Justice Radack and Justices Nuchia and Higley. Do not publish. See Tex. R. App. P. 47.2(b).