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The Court on this day, August 31, 2006, has withdrawn this opinion and judgment dated July 20, 2006, and substituted the opinion and judgment dated August 31, 2006. |
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Opinion filed July 20, 2006
In The
Eleventh Court of Appeals
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No. 11-04-00292-CR
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DERRICK SHANE BOYD, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the County Court at Law
Erath County, Texas
Trial Court Cause No. 35,642
O P I N I O N
Derrick Shane Boyd appeals his conviction for interference with the duties of a peace officer. Tex. Pen. Code Ann. ' 38.15 (Vernon Supp. 2005). After the jury found appellant guilty, the trial court sentenced him to seventy-two hours in the Erath County Jail and assessed a $400 fine and $213 court costs. In two points of error, appellant argues that the trial court erred in failing to quash the amended information and that the evidence was legally insufficient to support the conviction. Because the evidence was legally insufficient, we reverse and enter a judgment of acquittal.
Standard of Review
In reviewing claims of legal sufficiency, we review all of 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000); Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996). Due deference must be given to the fact-finder=s determination, particularly concerning the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1 (Tex. Crim. App. 2000); Jones v. State, 944 S.W.2d 642 (Tex. Crim. App. 1996).
Background Facts
The State called only one witness, Stephenville Police Officer Brandon Boen. Appellant neither testified nor called any witnesses. The following is a summary of Officer Boen=s testimony.
At about 2:00 a.m., Officer Boen and Officer Brandon West were dispatched to the residence of the Delta Chi Fraternity to investigate a loud noise coming from the house. The Stephenville Police Department had previously received numerous disorderly conduct complaints about the residence, and officers had been sent to the residence eight times prior to this investigation. As they approached the house, the officers heard a lot of loud talking and music coming from the house that Officer Boen described as being Aan unreasonable amount of noise.@ Officer Boen knocked on the front door several times and announced that he was a Stephenville police officer. No one came to the door.
Appellant came out into the carport area and looked at the officers. When Officer Boen asked appellant to come talk to them, appellant instead went back into the house. The officers then heard doors being locked from the inside. A few minutes later, however, Gregory Cichon came out into the carport area. Officer Boen went to the carport area to talk to Cichon about the noise complaint. Officer Boen realized that the police department had cited Cichon for a noise violation on a previous occasion and asked Cichon to bring out the other individuals in the house. Cichon agreed; but, when Officer Boen asked Cichon to leave the door to the house open, Cichon refused and started to close the door. When it became clear that Cichon was not going to cooperate, Officer Boen placed Cichon in custody.
While the officers were detaining Cichon, appellant and several others came out and began questioning the officers. Appellant began to tell the officers that they had no legal right to be at the house and no right to take Cichon into custody. When Officer Boen asked appellant if he lived at the house, appellant said that he did. Appellant continued to be verbally aggressive with the officers, and there was a strong smell of alcohol emanating from all the participants.
Officer Boen asked appellant to come down the steps into the carport for a talk. Officer Boen planned to identify appellant and then place him under arrest for disorderly conduct. Appellant told Officer Boen that he was not going to step down into the carport and started back into the house, attempting to shut the screen door. Officer Boen described the next events as follows:
He proceeded to try to pull away from us. He kept his arms inside. We were trying to get his arms out to detain him. During the scuffle, we got knocked into the kitchen table. . . . I got a chance to grab a hold of his arm. I performed a straight-arm takedown. . . . [W]e took the subject to the ground, placed him in handcuffs and took him into custody for the DOC [disorderly conduct complaint].
Officer Boen said that he believed that he had probable cause to arrest appellant for the disorderly conduct noise. After identifying appellant, the officers determined that he had been drinking alcohol despite being under the age of twenty-one.
The officers placed Cichon and appellant in separate patrol cars and then completed their investigation of the noise disturbance. They went inside the residence, determined that no other resident was there, cleared and secured the house, and then left.
Analysis
Appellant was charged and convicted under Section 38.15 which states that it is an offense to interfere with the public duties of peace officers, emergency medical service providers, fire fighters, corrections officers, jailers, and animal control officers. In particular, the information charged appellant under Section 38.15(a)(1):
(a) A person commits an offense if the person with criminal negligence interrupts, disrupts, impedes, or otherwise interferes with:
(1) a peace officer while the peace officer is performing a duty or exercising authority imposed or granted by law.
There appears to be only one reported case on appeal involving prosecution under Section 38.15: Carney v. State, 31 S.W.3d 392 (Tex. App.CAustin 2000, no pet.). In Carney, the court held that the evidence was legally insufficient to support the conviction. The information in Carney specifically limited the manner and means allegedly used by the defendant in interfering with the police officer to Ablocking entry into a residence.@ Id. at 396. The court found that there was no evidence that the defendant was up against the door physically preventing the officer=s entry.
The information in our case provided in part:
Derrick Shane Boyd, did in the County of Erath and the State of Texas, then and there: while B. Boen, a peace officer, was performing a duty or exercising authority imposed or granted by law, to-wit: investigation of a loud noise disturbance, with criminal negligence, interrupt, disrupt, impede, or interfere with the said B. Boen by trying to pull away from the officer.
Officer Boen testified that appellant tried to pull away from him, and the jury could reasonably infer that appellant was impeding and interfering with Officer Boen=s investigation by pulling away. However, the State had to prove the essential element that appellant had the culpable mental state of criminal negligence. Tex. Pen. Code Ann. ' 6.03(d) (Vernon 2003) provides:
A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor=s standpoint.
The State introduced no evidence that appellant ought to have been aware of a substantial and unjustifiable risk or what that risk was. In circumstances similar to those now before us, the legislature=s failure to add the additional culpable mental states of intentionally, knowingly, or recklessly presents problems to the prosecution. Appellant intended to impede Officer Boen=s investigation, and he knowingly did so. But there is no evidence that he acted with criminal negligence.
Appellant should have been charged with evading arrest or detention. Tex. Pen. Code Ann. ' 38.04 (Vernon 2003). A person commits that offense if he intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or to detain him.
A temporary detention is justified when the detaining officer has specific articulable facts which, taken together with rational inferences from those facts, lead him to conclude that the person detained is, has been, or soon will be engaged in criminal activity. Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997). Officer Boen heard the unreasonably loud talk and music, confirmed that appellant resided in the house, and was entitled to the inference that appellant may have been responsible for the unreasonably loud noise violation.[1] An investigative detention is a seizure under which the citizen is not free to leave, but it must be reasonable under the Constitutions of the United States and Texas. Francis v. State, 922 S.W.2d 176, 178 (Tex. Crim. App. 1996). It was reasonable to detain appellant for questioning under the circumstances. Officer Boen was entitled to follow appellant into the house and arrest him for violating Section 38.04. But the State chose to charge appellant under Section 38.15, not Section 38.04. There is no evidence that appellant was criminally negligent in his conduct. Because we find that appellant=s second point is correct B the evidence to convict was legally insufficient B we need not address his first point that the trial court erred in failing to quash the information.
This Court=s Ruling
We reverse the trial court=s judgment and enter a judgment of acquittal.
TERRY McCALL
JUSTICE
July 20, 2006
Publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J., and
McCall, J., and Strange, J.
[1]For a recent case concerning violation of a noise ordinance, see State v. Holcombe, 187 S.W.3d 496 (Tex. Crim. App. 2006).