Santos, Audrey Ann v. State

Affirmed and Memorandum Opinion filed July 5, 2005 Affirmed and Memorandum Opinion filed July 5, 2005. In The Fourteenth Court of Appeals ____________ NO. 14-03-01150-CR ____________ AUDREY ANN SANTOS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the County Court at Law Waller County, Texas Trial Court Cause No. CC03-040 M E M O R A N D U M   O P I N I O N A jury found appellant, Audrey Ann Santos, guilty of resisting arrest; the trial court assessed a penalty of one year probation and a one thousand dollar fine. Appellant brings this appeal, claiming that the evidence is legally and factually insufficient to convict her. We affirm the judgment of the trial court. Background The events leading up to the arrest of appellant are hotly disputed by the parties. Officer Jeffrey Singletary testified as follows: On the night of November 16, 2002, he initiated a traffic stop of appellant=s vehicle after she had failed to observe a stop sign. Appellant=s friend Rocquel Hines was in the car with her. After approaching the vehicle, Officer Singletary identified himself as a police officer and asked to see appellant=s driver=s license and proof of insurance. She refused to do so and became argumentative with him. Officer Singletary then determined that it was necessary to place appellant under arrest and asked her to step out of the car. After appellant=s repeated refusal to comply with Officer Singletary=s demands, he then tried to reach inside the car to grab appellant and place her under arrest. Appellant began to Acat fight@ with the officer by swatting at him with her hands. As Officer Singletary pulled appellant out of the vehicle, they spun around to the back of the car. Officer Singletary described this series of events as a struggle, during which he was able to call for help on his radio. Approximately three minutes later, Officer Alex Garcia arrived at the scene to assist in the arrest. Officer Garcia testified that appellant grabbed his arm as he attempted to subdue her. Officer Garcia also testified that appellant attempted to push away the officers with her buttocks and fought with the officers. Eventually the officers were able to place appellant under arrest. By contrast, appellant testified that she was essentially attacked by two men whom she later found out to be police officers. Appellant testified that she only resisted arrest passively by locking her hands together and keeping them underneath her. Appellant denied fighting, pushing, grabbing, or hitting the officers in any way. Legal and Factual Sufficiency We utilize the normal standards of review in evaluating legal and factual sufficiency claims. See Jackson v. Virginia, 443 U.S. 307 (1979); Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004) (factual sufficiency standards); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (legal sufficiency standards). In order to obtain a conviction for resisting arrest, the State was required to prove beyond a reasonable doubt that appellant intentionally prevented or obstructed a person she knew was a peace officer from effecting an arrest of appellant or another by using force against the peace officer or another. Tex. Pen. Code Ann. ' 38.03(a). In a single point of error, appellant claims that the evidence is legally and factually insufficient to establish that she used force against a peace officer or another. We disagree. The Texas Penal Code provides no definition of Aforce.@ See Tex. Pen. Code Ann. ' 1.07 (general definitions), ' 38.01 (definitions specific to resisting arrest offense). Case law indicates that evidence is sufficient to establish resisting arrest when the defendant struck an officer (See Sample v. State, 626 S.W.2d 515, 517 (Tex. Crim. App. 1981) and Burke v. State, 692 S.W.2d 570, 571 (Tex. App.CHouston [14th Dist.] 1985, no pet.)); pushed, shoved, struggled, and fought with an officer (see Jones v. State, 620 S.W.2d 129, 130 (Tex. Crim. App. 1980)); pushed and struck an officer (see Humphreys v. State, 565 S.W.2d 59, 61 (Tex. Crim. App. 1978)); and dragged an officer (see Washington v. State, 525 S.W.2d 189, 189 (Tex. Crim. App. 1975)). In this case, the record reveals that appellant=s actions rose to the level of using force to resist arrest in accordance with the aforementioned case law. See Sample, 626 S.W.2d at 517; Humphreys, 565 S.W.2d at 61; Washington, 525 S.W.2d at 189. Officer Singletary testified that the appellant Aswatt[ed]@ at him and struggled with him for a period of time. Officer Garcia additionally testified that appellant dug her nails into and twisted his arm as he tried to subdue her, fought, and pushed away from the officers with her buttocks. Based on this evidence, a rational trier of fact could have concluded beyond a reasonable doubt that appellant forcibly resisted arrest. Therefore, the evidence is legally sufficient to support appellant=s conviction. See King, 29 S.W.3d at 562. Appellant argues that because she did not strike, push, shove, or drag the officers, there was insufficient evidence of force to find that she resisted arrest. While these actions are certainly sufficient force against an officer to establish resisting arrest, see Sample, 626 S.W.2d at 517; Humphreys, 565 S.W.2d at 61; Washington, 525 S.W.2d at 189, they are by no means the limit of what constitutes force. See Luxton v. State, 941 S.W.2d 339, 341 (Tex. App.CFort Worth 1997, no pet.) (struggling with officer was sufficient force); Anderson v. State, 707 S.W.2d 267, 269B70 (Tex. App.CHouston [1st Dist.] 1986, no pet.) (swinging arms at and hitting officer was sufficient force). For instance, in Luxton, there was testimony that the defendant was Afighting@ with and Astruggl[ing] with the officers.@ Luxton, 941 S.W.2d at 341. Similarly, Officer Singletary described the arrest attempt as a struggle, and Officer Garcia testified that appellant was Afighting@ with the officers. As such, there was ample evidence to support appellant=s conviction. We also find that a neutral review of the evidence does not demonstrate that the proof of guilt is so obviously weak as to undermine confidence in the jury=s determination; neither is the contrary proof so strong that the reasonable doubt standard could not have been met. See Zuniga, 144 S.W.3d at 484. The majority of appellant=s evidence consisted of Rocquel Hines=s and appellant=s testimony that appellant was essentially attacked by the officers while she passively resisted by holding her hands in front of her and huddling up into a ball. As such, appellant=s evidence directly contradicted the State=s evidence, leaving the jury with the ultimate decision to determine the credibility of the witnesses. The jury is the sole judge of the credibility of the witnesses and the weight to be given he evidence, and may choose to believe all, some, or none of it. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). We find that appellant=s evidence is insufficient to undermine the jury=s determination. See id. Based on these determinations, the evidence is factually sufficient to support appellant=s conviction. Appellant=s sole point of error is overruled; we affirm the judgment of the trial court. /s/ Adele Hedges Chief Justice Judgment rendered and Memorandum Opinion filed July 5, 2005. Panel consists of Chief Justice Hedges and Justices Fowler and Frost. Do Not Publish C Tex. R. App. P. 47.2(b).