AT AUSTIN
NO. 3-93-078-CR
ANASTACIO SANCHEZ,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
FROM THE COUNTY COURT AT LAW NO. 5 OF TRAVIS COUNTY
NO. 374,323, HONORABLE WILFRED AGUILAR, JUDGE PRESIDING
After the jury found appellant guilty of the misdemeanor offense of resisting search, Tex. Penal Code Ann. § 38.03 (West 1989 & Supp. 1994), the court assessed punishment at confinement for twenty days. Appellant asserts two points of error, contending that the trial court erred in: (1) finding the evidence sufficient to support the conviction; and (2) denying appellant's requested jury instructions. We will reverse the trial court's judgment and reform to reflect an acquittal.
A person commits an offense if he "intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer's presence and at his direction from effecting an arrest, search or transportation of the actor or another by using force against the peace officer or another." Section 38.03(a). Appellant contends that the evidence is insufficient to support the conviction because no evidence was presented to support the element of the offense that requires that the accused used force against the peace officer. In reviewing the sufficiency of the evidence we must determine whether, viewing the evidence in the light most favorable to the conviction, 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); Casillas v. State, 733 S.W.2d 158, 160 (Tex. Crim. App. 1986), appeal dismissed, 484 U.S. 918 (1987).
Austin Police Officer Jeff Crawford testified that on May 2, 1992, he received a radio dispatch to investigate a disturbance between a male and a female at an apartment on Mission Hill. Crawford stated that as he started to approach the apartment on foot, "the door came open and Mr. Sanchez [appellant] came walking out." Crawford described appellant as looking "like he was still kind of upset or angry at something." When appellant continued to walk away after the officer told him that he needed to talk to him, Crawford described the events that ensued as follows: "I grabbed his [appellant's] arm, he jerked his arm away--I started patting him down--and when I was holding on to his arm--he jerked his arm away from me again causing me to lose my grip." Crawford related that he wanted to be sure that appellant did not have any weapons on him, because "every time I have been assaulted, except for one, it has occurred at family disturbances."
In Raymond v. State, 640 S.W.2d 678 (Tex. App.--El Paso 1982, pet. ref'd), cited by appellant, the court found the evidence insufficient to support the conviction under virtually the same facts as in the instant cause. Upon learning that the defendant Raymond had a number of outstanding traffic citations, the officer drove to the defendant's home and asked the defendant to sign the citations. The defendant refused and crawled under his car. Subsequently, the defendant emerged from under the vehicle, but continued to refuse to sign the citations. After advising the defendant that he was under arrest, the officer grabbed the defendant's arm and the defendant pulled his arm out of the officer's grasp. The grabbing of the arm by the officer and jerking away by the defendant took place a second time before the defendant submitted to arrest. The Raymond court held that the defendant's twice pulling his arm away did not constitute the requisite element of force against the peace officer. Raymond, 640 S.W.2d at 679. The Raymond court stated:
The very language of Section 38.03 indicates that the required force must be directed at the officer or applied to him. Appellant appropriately points to the Practice Commentary to Section 38.03:
One who runs away or makes an effort to shake off the officer's detaining grip may be guilty of evading arrest under Section 38.04, (1) but he is not responsible under this section.
The Practice Commentary has been cited by the Court of Criminal Appeals with apparent approval. Sutton v. State, 548 S.W.2d 697, 700 (Tex. Cr. App. 1977); Washington v. State, 525 S.W.2d 189, 190 (Tex. Cr. App. 1975).
Id. We find Washington v. State, 525 S.W.2d 189 (Tex. Crim. App. 1975), cited by the State, distinguishable from the instant cause. In Washington, the defendant, after being arrested and handcuffed for disorderly conduct, dragged two officers eight to ten feet. In addition, defendant continued to struggle with both officers "from the time the cover [other officers] was called until the time it arrived[.]" The Washington court rejected defendant's claim that the testimony of the officers showed no more than evading arrest, and held the evidence sufficient to show the requisite element of use of force against the officer. Id. at 191.
In the instant cause, we hold that appellant's twice jerking his arm away from the officer's grasp did not constitute force against the officer. Appellant's first point of error is sustained. Our disposition of this point of error renders it unnecessary to address his remaining point of error.
The conviction is reversed and reformed to reflect an acquittal.
Tom G. Davis, Justice
Before Justices Powers, Kidd and Davis*
Reversed and Reformed
Filed: April 27, 1994
Do Not Publish
* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).
1. A person commits the offense of evading arrest if "he intentionally flees from a person he knows is a peace officer attempting to arrest him or detain him for the purpose of questioning or investigating possible criminal activity." Texas Penal Code Ann. § 38.04(a) (West Supp. 1994).