Opinion issued February 14, 2013
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-11-01126-CR
———————————
ATHA ALBERT DOBBS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 21st District Court
Washington County, Texas
Trial Court Case No. 15,911
OPINION
A jury found appellant Atha Albert Dobbs guilty of the offense of resisting
arrest. 1 To reach the guilty finding, the jury found that appellant had used a deadly
weapon, namely, a firearm, to resist arrest, thereby elevating the offense to a third-
degree felony. 2 The jury assessed appellant’s punishment at six years in prison and
an $8,000 fine.
On appeal, appellant raises one issue. He contends that the evidence was not
sufficient to support the judgment of conviction. Because we hold that the
evidence was sufficient, we affirm.
Background Summary
Appellant lived with his wife, Dawn, and her daughters, S.M. and K.M. On
September 18, 2010, 16-year-old S.M. told Dawn that appellant had been sexually
abusing her for several years. Dawn and her two daughters moved out the next
day, leaving appellant alone at the house.
Dawn contacted the Washington County Sherriff’s Department and reported
S.M.’s allegations of sexual abuse. A warrant was issued for appellant’s arrest for
1
See TEX. PENAL CODE ANN. § 38.03(a) (Vernon 2011).
2
See id. § 38.03(d); see also id. § 12.34 (Vernon 2011) (defining punishment range
for third-degree felony offense).
2
the offense of sexual assault of a child. Dawn told the sheriff’s office that she
believed appellant may resist arrest.
Five sheriff’s deputies were dispatched to appellant’s house to arrest him.
Appellant was looking out his kitchen window when he saw the deputies
approaching the house. He went to his gun cabinet and retrieved a loaded pistol.
Two of the deputies went to the back of the house, two to the side, and one officer,
Deputy K. Kokemoor, went to the front door, which led into the kitchen.
When he got to the door, Deputy Kokemoor could see inside the house. He
saw appellant walking straight toward the door. Appellant had a gun in his hand.
One of the other officers had also seen the pistol and yelled, “Gun!” Each of the
deputies pulled out his service weapon and aimed it at appellant. Deputy
Kokemoor yelled at appellant, instructing him to put down the gun. Appellant did
not comply.
Appellant walked to the door. He was pointing the gun at his own temple.
Deputy Kokemoor could not hear what appellant was saying, but it appeared to the
officer that appellant was mouthing words to the effect that he was intending to kill
himself. Deputy Kokemoor kept his gun trained on appellant but did not fire his
weapon.
3
Appellant then turned around and began walking to the interior of the house.
Deputy Kokemoor lowered his gun and pulled out his taser. Deputy Kokemoor
went into the house. Appellant turned and looked at Deputy Kokemoor. When
appellant began to run into the living room, Deputy Kokemoor shot appellant with
a taser.
Appellant fell to the floor on to top of his gun. Deputy Kokemoor instructed
appellant to put his hands behind his back. Because appellant did not comply,
Deputy Kokemoor pulled the trigger on the taser a second time. Deputy
Kokemoor kicked appellant’s gun away from him. The officer discovered that the
gun was loaded. It had a bullet in the chamber.
The officers took appellant into custody. Appellant was charged with three
felony offenses: (1) continuous sexual abuse of a child under the age of 14 years;
(2) aggravated sexual assault; and (3) resisting arrest. With respect to the resisting
arrest charge, the State alleged that appellant had used a deadly weapon, namely, a
firearm, in resisting arrest, making the offense a third-degree felony.
The State offered a number of witnesses at trial, including Dawn, S.M., and
Deputy Kokemoor. Appellant testified in his own defense.
4
The jury was unable to reach a unanimous verdict on the charged offenses of
continuous sexual abuse of a child and aggravated sexual assault. The trial court
declared a mistrial with respect to those two charges.
The jury did find appellant guilty of the third-degree felony offense of
resisting arrest. Following the punishment phase, the jury assessed appellant’s
punishment at six years in prison and an $8,000 fine. This appeal followed.
Sufficiency of the Evidence
In one issue, appellant contends that the evidence introduced at trial is
legally insufficient to support his conviction for the offense of resisting arrest.
A. Standard of Review
This Court reviews sufficiency-of-the-evidence challenges applying the
same standard of review, regardless of whether an appellant presents the challenge
as a legal or a factual sufficiency challenge. See Ervin v. State, 331 S.W.3d 49,
53–55 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (construing majority
holding of Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)). This
standard of review is the standard enunciated in Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 2789 (1979). See id. Pursuant to this standard, evidence is
insufficient to support a conviction if, considering all the record evidence in the
light most favorable to the verdict, no rational fact finder could have found that
5
each essential element of the charged offense was proven beyond a reasonable
doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; In re Winship, 397 U.S.
358, 361, 90 S. Ct. 1068, 1071 (1970); Laster v. State, 275 S.W.3d 512, 517 (Tex.
Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
We can hold evidence to be insufficient under the Jackson standard in two
circumstances: (1) the record contains no evidence, or merely a “modicum” of
evidence, probative of an element of the offense, or (2) the evidence conclusively
establishes a reasonable doubt. See Jackson, 443 U.S. at 314, 318 n.11, 320, 99 S.
Ct. at 2786, 2789 n.11, 2789; see also Laster, 275 S.W.3d at 518; Williams, 235
S.W.3d at 750.
The sufficiency-of-the-evidence standard gives full play to the responsibility
of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and
to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443
U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.
App. 2007). An appellate court presumes that the fact finder resolved any conflicts
in the evidence in favor of the verdict and defers to that resolution, provided that
the resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793.
In viewing the record, direct and circumstantial evidence are treated equally;
circumstantial evidence is as probative as direct evidence in establishing the guilt
6
of an actor, and circumstantial evidence alone can be sufficient to establish guilt.
Clayton, 235 S.W.3d at 778. Finally, “[e]ach fact need not point directly and
independently to the guilt of the appellant, as long as the cumulative force of all
the incriminating circumstances is sufficient to support the conviction.” Hooper v.
State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
B. Elements of the Offense
To convict an accused for resisting arrest, the State must prove (1) the
accused intentionally (2) prevented or obstructed (3) a person he knows is a peace
officer (4) from effecting an arrest (5) of himself or another (6) by using force
against the peace officer or another. See TEX. PENAL CODE § 38.03(a) (Vernon
2011). The offense of resisting arrest is elevated to a felony if the defendant uses a
deadly weapon to resist arrest. See id. § 38.03(d).
The indictment in this case read, in part, as follows:
[O]n or about the 22d day of September, A.D. 2010, [Atha Albert
Dobbs] . . . did intentionally prevent or obstruct Kyle Kokemoor, a
person the defendant knew to be a peace officer, from effecting an
arrest of the defendant, and the defendant did then and there use a
deadly weapon, to-wit: a firearm, to resist, prevent, or obstruct the
arrest by exhibiting a firearm, against the peace and dignity of the
State.
7
C. Analysis
On appeal, appellant contends that the evidence is insufficient to support the
judgment of conviction because the State failed to prove that he “used force
against” Deputy Kokemoor, an element necessary to establish the offense of
resisting arrest. See id. § 38.03(a).
Appellant asserts that “merely exhibiting a firearm” cannot constitute a use
of force against a peace officer. Under the unique circumstances of this case, we
disagree.
Appellant testified that, after his wife told him that she had gone to the
police and reported the sexual assault allegations, he suspected that the police
would be coming to arrest him. Appellant acknowledged that he took a loaded
pistol from his gun cabinet in response to seeing the sheriff’s deputies in his
driveway. He testified that he retrieved the gun because he was “scared.”
Appellant stated that he feared he would lose everything that he had worked so
hard in his life to obtain. He also testified that he did not have “the nerve” to shoot
himself.
Deputy Kokemoor testified that, upon his arrival at the scene, he instructed
appellant to drop the gun, but appellant did not comply. Instead, with gun in hand,
appellant walked straight to the door where Deputy Kokemoor was standing and
8
looked at the deputy. Appellant came close to the other side of the door and
looked at Deputy Kokemoor, who noted that appellant held the gun to his own
temple and “mouthed the words, ‘I’m going to kill myself.’” Deputy Kokemoor
testified that, at the time, he believed appellant was attempting “suicide by cop”;
that is, appellant wanted to force the officers to shoot him.
When asked why he did not shoot appellant, Deputy Kokemoor testified that
he did not believe the gun was a threat; however, the deputy clarified that he
continued to keep his gun aimed at appellant and would have shot appellant had
appellant turned the gun toward him.
Citing Deputy Kokemoor’s testimony, appellant contends that “at no point in
the testimony was there any recitation of a physical struggle or any use of force
applied by Appellant directed towards the officers during the arrest.” Appellant
also points out that he made no verbal threats to the officers.
Appellant also relies heavily on Deputy Kokemoor’s testimony concerning
appellant’s actions of pointing the gun at his own temple. He emphasizes that
appellant did not, at any time, point the gun directly at the deputies. He further
relies on Deputy Kokemoor’s testimony that the deputy did not shoot appellant
because the deputy did not believe the gun was a threat. Appellant asserts that
9
“merely exhibiting a firearm,” as alleged in the indictment, is not sufficient to
constitute use of force against a peace officer. 3
The Penal Code does not define the phrase “using force against,” as found in
section 38.03(a); nor does it define those words individually. As appellant
correctly points out, courts have held that passive noncooperation does not
constitute force against an officer. See Sheehan v. State, 201 S.W.3d 820, 822
(Tex. App.—Waco 2006, no pet.) (holding passive noncooperation of pulling arms
to chest and interlocking them posed no danger to arresting officers and did not
constitute use of force as element of resisting arrest); see also Pumphrey v. State,
245 S.W.3d 85, 89 n.4 (Tex. App.—Texarkana 2008, pet. ref’d) (describing “mere
passive resistance” or “simple noncooperation” as sitting with arms crossed,
crawling away, or the like).
Nonetheless, an action, that, when viewed in isolation, may not rise to the
level of resisting arrest, may constitute the use of force in certain situations. See
3
In his brief, appellant is critical of the language of the indictment. He intimates
that the “exhibiting a firearm” language was inadequate to allege the offense of
resisting arrest because the indictment failed to allege that he used force against
the arresting officer. Appellant does not, however, formally raise this as an issue
on appeal. Moreover, a defendant must object to a defect in form or substance in
the indictment before trial or he waives the right to object on appeal. TEX. CODE
CRIM. PROC. ANN. art. 1.14(b) (Vernon 2005). The record does not show that
appellant objected to the indictment. Thus, appellant has waived his right to
complain that the indictment inadequately alleged the elements of resisting arrest.
See Gary v. State, 195 S.W.3d 339, 340 (Tex. App.—Waco 2006, no pet.).
10
Gary v. State, 195 S.W.3d 339, 340 (Tex. App.—Waco 2006, no pet.). Courts
have held that a person can forcefully resist an arrest without successfully making
physical contact with the officer. See Sartain v. State, 228 S.W.3d 416, 424 (Tex.
App.—Fort Worth 2007, pet. ref’d); see also Haliburton v. State, 80 S.W.3d 309,
312–13 (Tex. App.—Fort Worth 2002, no pet.) (holding that defendant’s act of
“kicking at” an officer constituted force even though the kick did not connect). In
other cases, actions which endanger an officer may constitute “use of force
against.” See, e.g., Gary, 195 S.W.3d at 341 (holding that releasing a vicious dog
to attack an officer was use of force, even though dog never made contact with
officer). Acts threatening the officer with imminent bodily harm have also been
held to be use of force against the officer. See Campbell v. State, 128 S.W.3d 662,
671 (Tex. App.—Waco 2003, no pet.) (holding evidence showed use of force when
defendant had pulled gun from his pocket and yelled “get back”).
Courts have made clear that section 38.03 does not require action directed at
or toward an officer; rather, it only requires force exerted in opposition to the
officer’s efforts at making an arrest. See Pumphrey, 245 S.W.3d 90–91; see
Hopper v. State, 86 S.W.3d 676, 679 (Tex. App.—El Paso 2002, no pet.) (reaching
conclusion that term “against” means “opposition to”). With respect to the term
“force,” courts have applied its common and ordinary meaning as defined in
11
dictionaries. See Ex parte Rieck, 144 S.W.3d 510, 512 (Tex. Crim. App. 2004)
(explaining that, to determine plain meaning of word, courts look to dictionaries).
The Fort Worth Court of Appeals noted that Black’s Law Dictionary defines
“force” as “[p]ower dynamically considered, that is, in motion or in action;
constraining power, compulsion; strength directed to an end.” Haliburton, 80
S.W.3d at 313 (quoting BLACK’S LAW DICTIONARY 330 (5th ed. 1983)); see Rabe
v. State, No. 13–10–00419–CR, 2012 WL 2052147, at *3 (Tex. App.—Corpus
Christi June 7, 2012, no pet.) (mem. op.) (not designated for pub.) (noting that
Webster’s Dictionary defines “force” as “violence, compulsion, or constraint
exerted upon or against a person or thing”). Black’s Dictionary also defines force
to include both actual force and constructive force. See BLACK’S LAW DICTIONARY
656 (3d ed. 1990) (describing constructive force, in part, as “[t]hreats and
intimidation to gain control or prevent resistance”).
Applying the principles set forth in the foregoing authorities, we conclude
that the evidence was sufficient to prove that appellant used force against Deputy
Kokemoor. In reaching this conclusion, we need not determine whether “merely
exhibiting a firearm” would be sufficient to support a conviction for resisting
arrest. The totality of appellant’s actions went beyond merely exhibiting a firearm.
12
Appellant’s act of exhibiting the gun was accompanied by other conduct that,
within the context of the officers’ effectuating the arrest, constituted force.
To reiterate, appellant retrieved a gun in direct response to the officers’
arrival to arrest him for the offense of sexual assault of a child. Appellant
displayed the gun as he walked toward Deputy Kokemoor. Appellant indicated his
awareness of Deputy Kokemoor by looking at him. Appellant refused to put the
gun down despite being instructed to do so. Appellant continued walking until he
was close to Deputy Kokemoor on the other side of the door. The officers could
not arrest appellant because he would not voluntarily relinquish the gun. Appellant
dropped the gun, and the officers were able to effectuate the arrest, only after
appellant had been tasered twice.
As appellant points out, Deputy Kokemoor testified that he did not shoot
appellant with his firearm because he did not feel threatened by appellant’s gun.
Nonetheless, Deputy Kokemoor further testified that he felt compelled to keep his
gun trained on appellant. He stated that, at the time, he believed it was a “suicide
by cop” situation. The jury could have reasonably inferred that both appellant and
Deputy Kokemoor knew that it would take minimal effort for appellant to turn the
gun toward Deputy Kokemoor and for it to become a lethal situation. See Obigbo
v. State, 6 S.W.3d 299, 306 (Tex. App.—Dallas 1999, no pet.) (explaining that
13
“jurors [are] free to use their common sense and apply common knowledge,
observation, and experience gained in the ordinary affairs of life when giving
effect to the inferences that may reasonably be drawn from the evidence”).
Viewed objectively, the evidence supports an inference that appellant’s
conduct was “in opposition” to the officers’ effectuating his arrest. An officer
cannot effectuate an arrest when the person to be arrested is holding a gun and
refusing to surrender it. Even when a suspect is not pointing the gun directly at the
officer, the situation is a volatile one with life and death consequences. The
officer’s testimony indicated that he believed it necessary to taser appellant to
subdue him and to effectuate the arrest. Until that point, appellant was using his
gun to intimidate the officers and to control the situation.
The jury could have reasonably inferred that appellant knew the officers
would not approach him while he was holding the gun. Such conduct is designed
to oppose the officer’s ability to complete the arrest. Thus, the jury could have
found that his conduct was “against” the officer. See Pumphrey, 245 S.W.3d 90–
91; Hopper, 86 S.W.3d at 679.
Significantly, although section 38.03(a) requires force, nothing in the statute
requires that the force exerted against the officer be violent or make physical
contact with the officer. The commonly understood definition of “force”
14
encompasses acts of compulsion or coercion unaccompanied by actual acts of
physical violence. See Haliburton, 80 S.W.3d at 313 (adopting definition of
“force” that includes “compulsion”).
Here, the jury could have inferred that appellant’s conduct created a volatile
and provocative situation, placing all involved in danger of imminent bodily harm.
In creating such a situation, appellant’s conduct was an effective means to repel the
arrest. The jury could have found that appellant’s acts were acts of compulsion
and coercion designed to prevent the arrest by inducing Deputy Kokemoor into
fearing for his own personal safety and for the safety of the other officers. Such an
act of compulsion and coercion in opposition to the officers’ effectuating the arrest
is an act of force.
Viewing all the evidence, direct and circumstantial, in the light most
favorable to the jury verdict, we conclude that a rational fact finder could have
found, beyond a reasonable doubt, the essential element of use of force to support
its finding that appellant was guilty of the offense of resisting arrest. See Jackson,
443 U.S. at 319, 99 S. Ct. at 2789. We hold that the evidence is sufficient to
support the judgment of conviction.
We overrule appellant’s sole issue.
15
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Jennings, Higley, and Sharp.
Justice Sharp, dissenting.
Publish. TEX. R. APP. P. 47.2(b).
16
Atha Albert Dobbs v. State
Combined Opinion