Affirmed and Memorandum Opinion filed October 30, 2003.
In The
Fourteenth Court of Appeals
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NO. 14-02-00553-CR
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DAVID GREATHOUSE, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from County Criminal Court at Law No. 7
Harris County, Texas
Trial Court Cause No. 1051722
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M E M O R A N D U M O P I N I O N
Appellant David Greathouse appeals his conviction for resisting arrest, contending the evidence was legally and factually insufficient to sustain his conviction. We affirm.
Background
Officer Jackson of the Houston Police Department testified he was dispatched to an apartment complex regarding an assault on March 29, 2001. Two apartment complex employees told him appellant had pushed them in the leasing office after appellant had been warned about his loud music. Jackson then went to appellant’s apartment to talk to him about the incident. After appellant answered his door, Jackson asked him to go downstairs to talk because Jackson felt unsafe with a staircase behind him. Appellant refused. Jackson noted that appellant was speaking loudly and firmly, and he appeared to be under the influence of “an unknown substance.” Jackson told appellant that if he was unwilling to come outside, they needed to talk inside. Appellant did not move from the doorway, but asked if he was being arrested. Jackson responded affirmatively and instructed him to turn around to be handcuffed. Appellant clenched his arms and hands and did not turn around. Jackson called for additional officers, continued to tell appellant to turn around, and began shaking a bottle of pepper spray so that appellant could see it. At that point, Jackson became even more concerned for his safety because he saw two pocketknives on a table in appellant’s apartment. When appellant still did not turn around after he was repeatedly asked to do so, Jackson sprayed him in the face with pepper spray. Jackson waited to see if appellant would cooperate, but appellant stepped back into the apartment and then came toward Jackson. Jackson entered appellant’s apartment and began striking appellant with his flashlight while ordering appellant to turn around. Appellant grabbed at Jackson, tearing his shirt, and pushed him to the ground. The two continued to struggle, knocking over furniture and dislodging Jackson’s equipment until additional officers arrived and appellant was eventually handcuffed. Jackson partially ripped his bicep muscle during the struggle.
In contrast to Jackson’s testimony, appellant testified that Jackson never told him to turn around or that he was under arrest. He also denied going toward Jackson, but claimed Jackson pushed his way into his apartment and began hitting him with a flashlight immediately after Jackson suddenly sprayed him with pepper spray.
Legal and Factual Sufficiency
In appellant’s two issues, he contends the evidence was legally and factually insufficient to support his conviction because he acted in self-defense and defense of property. The sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1998). However, a defendant must request that a defensive issue be included in the jury charge in order for the defensive issue to be applicable to the case and therefore required in the charge. Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998). In this case, appellant did not request and the trial court did not instruct the jury on the defense of property issue. Therefore, a sufficiency review would be inappropriate. See Hernandez v. State, 10 S.W.3d 812, 822 (Tex. App.— Beaumont 2000, pet. ref’d). Because the trial court instructed the jury on the issue of self-defense, we limit our review to this issue.
A person acts in self-defense and is justified in using force to resist an arrest if before the actor offers any resistance, the peace officer uses or attempts to use greater force than necessary to make the arrest and the actor believes the force is immediately necessary to protect himself. Tex. Pen. Code Ann. § 9.31(c) (Vernon 2003). In reviewing the legal sufficiency of the evidence against a claim of self-defense, we review all the evidence in the light most favorable to the prosecution and determine whether a rational jury could have found the essential elements of the offense beyond a reasonable doubt and found against appellant on the self-defense issue beyond a reasonable doubt. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). We consider all the evidence presented at trial, but we do not re-weigh the evidence or substitute our judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The jury alone determines the credibility of the witnesses and the strength of the evidence. Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1997).
When we review a factual-sufficiency challenge to the verdict based on the implicit rejection of a defense, we must determine whether a neutral review of all the evidence demonstrates that the proof of guilt is too weak to support the jury’s determination, or, although adequate if taken alone, the evidence is against the great weight and preponderance of the evidence. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003).
First, appellant claims that “any” use of force by Officer Jackson was greater than necessary to make the arrest because the arrest was illegal. It is no defense to the offense of resisting arrest that the arrest was unlawful. Tex. Pen. Code Ann. § 38.03(b) (Vernon 2003); see Tucker v. State, 114 S.W.3d 718, 722–23 (Tex. App.—Corpus Christi 2003, no pet. h.) (holding a defendant must submit to an unlawful arrest even if the arrest occurs in violation of the guarantee that people are secure in their homes from unreasonable searches and seizures); Cail v. State, 2003 WL 21357288, at *2 (Tex. App.—Houston [1st Dist.] June 12, 2003, no pet. h.) (not designated for publication) (holding the jury was correctly instructed that it could not consider whether the arresting officer’s entry into the defendant’s home was lawful). The legality of the arrest, therefore, is not relevant to the defensive issue of self-defense. Evans v. State, 876 S.W.2d 459, 465 (Tex. App.—Texarkana 1994, no pet.).
Appellant also claims Jackson used more force than was required to make the arrest when he sprayed appellant with pepper spray and hit him with a flashlight. Further, appellant claims his acts of grabbing at and pushing Jackson were necessary to protect himself. Viewing the evidence in the light most favorable to the verdict, the jury could have found that appellant did resist arrest and Jackson did not use greater force than necessary to make the arrest before appellant offered any resistance. Jackson testified that he used pepper spray only after appellant repeatedly refused to comply with Jackson’s requests. Additionally, appellant appeared to be drugged or intoxicated and clenched his arms and hands in a defensive stance when Jackson told him he was being arrested. Jackson testified that he evaluated the situation and after considering the presence of pocketknives inside the apartment and the staircase outside, he concluded the use of pepper spray was appropriate. Jackson further testified that he began hitting appellant with his flashlight only after he waited to see if appellant would cooperate. Appellant admitted to struggling with Jackson and pushing him down while Jackson was trying to arrest him. Based on this evidence, a jury could conclude that appellant resisted arrest and Jackson did not use greater force than was necessary to make the arrest before appellant offered any resistance. See Evans v. State, 876 S.W.2d 459, 466–65 (Tex. App.—Texarkana 1994, no pet.) (holding an officer did not use excessive force when he pulled the defendant’s arm behind his back after the defendant repeatedly told the officer he was not going to jail and he began walking toward his house).
Having found the evidence legally sufficient, we consider all the evidence to determine whether the verdict is against the great weight and preponderance of the evidence. In support of his self-defense theory, appellant testified that Jackson did not tell appellant he was under arrest, nor did Jackson order him to turn around before Jackson unexpectedly sprayed him with pepper spray. Appellant also denied going toward Jackson before Jackson hit him with the flashlight. By finding appellant guilty, the jury implicitly rejected appellant’s claim he was acting in self-defense. Zuliani, 97 S.W.3d at 594. The jury is the sole judge of the weight and credibility of witness testimony, and they apparently found Jackson’s testimony to be credible. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). The evidence is not rendered factually insufficient because the jury resolved conflicting facts in the State’s favor. Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997). The jury did not believe Jackson used greater force than necessary to make the arrest before appellant resisted, and this conclusion is not contrary to the great weight and predonderance of the evidence.
We overrule appellant’s issues. Accordingly, the judgment of the trial court is affirmed.
/s/ Charles W. Seymore
Justice
Judgment rendered and Memorandum Opinion filed October 30, 2003.
Panel consists of Chief Justice Brister and Justices Anderson and Seymore.
Do Not Publish — Tex. R. App. P. 47.2(b).