ACCEPTED
05-14-01207-cr
FIFTH COURT OF APPEALS
DALLAS, TEXAS
7/27/2015 4:41:27 PM
LISA MATZ
CLERK
5th Court of Appeals
FILED: 7-29-15
Lisa Matz, Clerk
No. 05-14-1207-CR
RECEIVED IN
In the Court of Appeals 5th COURT OF APPEALS
DALLAS, TEXAS
For the Fifth District of Texas
7/27/2015 4:41:27 PM
Dallas, Texas LISA MATZ
Clerk
Brittany Rae Booker,
Appellant
v.
The State of Texas,
Appellee
On appeal from the County Court at Law #3 of Collin County, Texas
Honorable Lance Baxter, Presiding
Cause No. 003-83858-2014
Appellant’s Brief
Charles Pelowski
121 E. Myrtle
Angleton, Texas 77515
Tel. 979-849-8526
Charlie@smbattorney.com
State Bar No. 24061053
Attorney for Appellant
Identity of Parties and Counsel
Brittany Rae Booker—Appellant The State of Texas—Appellee
Appellate Counsel Appellate Counsel
Charles Pelowski John Rolater
121 E. Myrtle Assistant District Attorney
Angleton, TX 77515 Collin County District Attorney’s Office
2100 Bloomdale Rd., Ste. 200
McKinney, TX 75071
Trial Counsel Trial Counsel
Charles Pelowski Ryan King
121 E. Myrtle Assistant District Attorney
Angleton, TX 77515 Collin County District Attorney’s Office
2100 Bloomdale Rd., Ste. 200
William Anthony “Tony” Vitz
McKinney, TX 75071
1413 Harroun Ave.
McKinney, TX 75069
2
Table of Contents
Identity of Parties and Counsel ..................................................................................... 1
Index of Authorities....................................................................................................... 4
Statement of the Case .................................................................................................... 4
Issue Presented ............................................................................................................... 5
Statement of Facts .......................................................................................................... 5
Summary of the Argument ............................................................................................ 7
Argument ....................................................................................................................... 9
Standard of Review ..................................................................................................... 9
The only evidence presented in this case established that the so-called
“interference” consisted of Appellant arguing with and questioning a police
officer. This conduct was speech only, and was therefore not an offense under
Texas Penal Code 38.15. ............................................................................................ 9
Prayer ............................................................................................................................ 14
Certificate of Compliance ........................................................................................... 15
Proof of Service ............................................................................................................ 15
3
Index of Authorities
Cases
Carney v. State, 31 S.W.3d 392 (Tex. App.—Austin 2000). ............................ 10, 11, 14
Freeman v. Gore, 483 F.3d 404 (5th Cir. 2007) ........................................................... 11
Haggerty v. Texas Southern University, 391 F.3d 653 (5th Cir. 2004). .................... 11, 12
Jackson v. Virginia, 443 U.S. 307 (1979). ....................................................................... 9
Statutes
Tex. Pen. Code 2.03. ................................................................................................... 10
Tex. Pen. Code 38.15 .............................................................................................. 9, 10
Statement of the Case
Appellant, Brittany Rae Booker, was charged by information with Interference with
Public Duties in violation of Texas Penal Code § 38.15.1 The case proceeded to a
jury trial, wherein Appellant was convicted and sentenced to 90 days incarceration.2
The trial court suspended Appellant’s sentence and placed her on community
supervision for a period of 9 months.3 This is a direct appeal from that conviction
and sentence.
1
(Clerk’s R. at 6).
2
(Clerk’s R. at 52).
3
(Clerk’s R. at 52).
4
Issue Presented
It is a statutory defense to Texas Penal Code § 38.15 that a person’s conduct
involved speech alone, even if that person argues with officers, delaying or stalling an
investigation. At trial in the case at bar, the only evidence presented showed that
Appellant questioned a police officer’s authority and argued with him, delaying his
investigation, but that Appellant did not touch, block, or otherwise physically
obstruct the officer in any way. Was the evidence insufficient to convict Appellant
for violation of Texas Penal Code § 38.15?
Statement of Facts
On April 10, 2014, law enforcement responded to a bank robbery involving a
bomb threat.4 Police officers set up a perimeter and waited for explosive-ordinance-
disposal units to respond.5 This perimeter was described as a “porous perimeter,”
meaning that people were free to come and go from neighboring business, including
a nearby CVS drugstore.6 Brittany Booker, the Appellant, was standing on the
4
(Rep.’s R. vol. 2 at 24:15-25:2).
5
(Rep.’s R. vol. 2 at 26:1-12).
6
(Rep.’s R. vol. 2 at 35:20-37:3).
5
sidewalk outside of the CVS attempting to videotape the law enforcement response.7
Appellant was outside of the perimeter marked by law enforcement.8
Officer Smith testified that he saw Appellant standing on the sidewalk near
the CVS and asked her to come toward his car, which was inside the perimeter
marked by law enforcement with orange cones.9 Appellant declined.10 Officer Smith
told Appellant that she needed to leave the area, and Appellant responded by saying,
“OK, but why?” and questioning Officer Smith about why she could not be there.11
Officer Smith testified that, at that point, law enforcement was “ready to roll,” and
he again told her to move.12 Appellant repeated her questions to Officer Smith
about why she could not be on the sidewalk, and Officer Smith arrested her
Interference with Public Duties.13
Officer Smith testified that Appellant did not take any action toward him.14
She did not touch him.15 She did not block his vehicle with her body and she did
7
(Rep.’s R. vol. 2 at 40:18-20).
8
(Rep.’s R. vol. 2 at 68:24-69:4).
9
(Rep.’s R. vol. 2 at 42:8; 67:24-68:2).
10
(Rep.’s R. vol. 2 at 42:8).
11
(Rep.’s R. vol. 2 at 42:12-13; 74:6-17).
12
(Rep.’s R. vol. 2 at 41:15; 74:6-19).
13
(Rep.’s R. vol. 2 at 42:20-22).
14
(Rep.’s R. vol. 2 at 79:8-11).
15
(Rep.’s R. vol. 2 at 79:12-13).
6
nothing to physically obstruct the officer.16 The alleged interference consisted only
of arguing with or questioning Officer Smith.17 She did nothing to physically
interfere with Officer Smith’s investigation.18 She merely “delayed” or “stalled”
Officer Smith.19
Summary of the Argument
Texas Penal Code § 38.15 prohibits a person from interfering with a police
officer who is performing a lawful duty. Section 38.15 also provides that it is a
statutory defense to the offense of Interference with Public Duties that a person’s
conduct consisted of speech alone. Texas courts and the United States Court of
Appeals for the Fifth Circuit have recognized that arguing with an officer and
questioning his authority, without more, is mere speech. This is true even if the
person’s argument delays an officer from taking action or conducting an
investigation.
In the instant case, Appellant was approached by Officer Smith and asked to
leave the sidewalk outside of a CVS near where law enforcement had set up a
perimeter to conduct a controlled detonation. The testimony at trial showed that
16
(Rep.’s R. vol. 2 at 14-19).
17
(Rep.’s R. vol. 2 at 79:20-22).
18
(Rep.’s R. vol. 2 at 80:2-3).
19
(Rep.’s R. vol. 2 at 79:25-80:2).
7
Appellant was outside the marked perimeter when she was told to leave. Appellant
agreed to leave the area, but questioned Officer Smith about why she could not
remain outside of the marked perimeter. She briefly argued with Officer Smith,
questioning why he could be inside the marked perimeter but she could not be
outside of it.
According to Officer Smith’s testimony, at no point did Appellant physically
touch, block, or otherwise physically impede him. Officer Smith testified that
Appellant was arrested because, by questioning his authority and arguing with him,
she delayed his investigation when he “was ready to roll.”
The only evidence produced at trial showed that Appellant’s conduct
amounted to no more than arguing with the officer, delaying him. Texas and federal
courts have recognized that such conduct is not an actionable offense under Texas
Penal Code § 38.15.
Because the only evidence presented at trial showed that Appellant’s conduct
amounted to nothing more than speech alone, the State failed to carry its burden of
proof beyond all reasonable doubt, and the evidence presented against Appellant
was insufficient to sustain a conviction for Interference with Public Duties.
This Court should reverse Appellant’s conviction and render an acquittal.
8
Argument
Standard of Review
Evidence is insufficient to sustain a guilty verdict if no rational trier of fact
could found that the State proved every element of the offense charged beyond all
reasonable doubt.20 Proof beyond a reasonable doubt is an essential requirement of
Due Process, and a conviction without sufficient proof is unconstitutional.21
The only evidence presented in this case established that the so-called
“interference” consisted of Appellant arguing with and questioning a police
officer. This conduct was speech only, and was therefore not an offense under
Texas Penal Code 38.15.
Texas Penal Code 38.15 provides, in pertinent part, that “a person commits
an offense if the person with criminal negligence interrupts, disrupts, impedes or
otherwise interferes with a peace officer while the peace officer is performing a duty
or exercising authority imposed or granted by law.”22 It is “a defense to prosecution
under this section that the interruption, disruption, impediment, or interference
20
See Jackson v. Virginia, 443 U.S. 307, 318 (1979).
21
Id.
22
Tex. Pen. Code 38.15(a)(1).
9
alleged consisted of speech only.”23 The State has the burden of disproving a raised
defense beyond all reasonable doubt.24
In Carney v. State, the Court of Appeals in Austin held that arguing with
police officers “does not constitute an actionable offense” under Texas Penal Code
§ 38.15.25 Further, the court held that “speech is a statutory defense to the offense
charge[d] even if the end result is ‘stalling’.”26
David Carney was arrested for interference with public duties in violation of
Texas Penal Code § 38.15 when police officers showed up at his house and
attempted to arrest his wife.27 Carney argued with the police, telling them that their
warrant was invalid and refusing to move from in front of the door to his house. See
id. Officers encircled Carney while he argued with them about entering the house.28
After some time, the officers “became antsy,” “determined that it was time to go in,”
“thought [Carney] had been given ample time,” and decided that Carney’s arrest was
“way overdue.”29
23
Tex. Pen. Code 38.15(d).
24
See Tex. Pen. Code 2.03.
25
Carney v. State, 31 S.W.3d 392, 398 (Tex. App.—Austin 2000).
26
See id.
27
See id.
28
See id.
29
See id.
10
In Carney, the State argued that
[B]y arguing with the Troopers first in the front yard, then at the garage
door, and then at the doorway leading from the garage into the
residence proper, appellant was stalling the Troopers.... Appellant's
actions of more than mere words were the direct cause of Trooper
Jones having to push appellant to the side but--for appellant's physical
presence at, in or near the doorway, he would have been neither
pushed nor arrested.30
But the Austin Court of Appeals found this argument unpersuasive.31 The
Court of Appeals conceded that Carney’s argument with the officers “delayed the
officers” entry into the home, but further recognized that speech alone is a statutory
defense to the charge of interference with public duties.32 The Court of Appeals
reversed Carney’s conviction and rendered an acquittal.33
The United States Court of Appeals for the Fifth District has twice recognized
that Carney prohibits conviction for an offense under Texas Penal Code § 38.15
when a defendant’s conduct consists of speech only.34 Moreover, in applying Carney
the Fifth Circuit recognized that Texas law limits the application of section 38.15 to
30
Id.
31
See id.
32
See id.
33
See id. at 398-99.
34
See Freeman v. Gore, 483 F.3d 404 (5th Cir. 2007); Haggerty v. Texas Southern University, 391 F.3d
653 (5th Cir. 2004).
11
an analysis to the defendant’s conduct alone without examining the surrounding
facts of the alleged offense.35
The facts of the case at bar are extremely similar to Carney. On April 10, 2014,
law enforcement responded to a bank robbery involving a bomb threat.36 Police
officers set up a perimeter and waited for explosive ordinance disposal units to
respond.37 This perimeter was described as a “porous perimeter,” meaning that
people were free to come and go from neighboring business, including a nearby CVS
drugstore.38 Brittany Booker, the Appellant, was standing on the sidewalk outside of
the CVS attempting to videotape the law enforcement response.39 Appellant was
outside of the perimeter marked by law enforcement.40
Officer Smith testified that he saw Appellant standing on the sidewalk near
the CVS and asked her to come toward his car, which was inside the perimeter
marked by law enforcement with orange cones.41 Officer Smith told Appellant that
she needed to leave the area, and Appellant responded by saying, “OK, but why?”
35
See Haggerty, 483. F.3d at 559 (DeMoss, J. dissenting).
36
(Rep.’s R. vol. 2 at 24:15-25:2).
37
(Rep.’s R. vol. 2 at 26:1-12).
38
(Rep.’s R. vol. 2 at 35:20-37:3).
39
(Rep.’s R. vol. 2 at 40:18-20).
40
(Rep.’s R. vol. 2 at 68:24-69:4).
41
(Rep.’s R. vol. 2 at 42:8; 67:24-68:2).
12
and questioning Officer Smith about why she could not be there.42 Officer Smith
testified that, at that point, law enforcement was “ready to roll,” and he again told
her to move.43 Appellant questioned Officer Smith a second time about why she
could not be on the sidewalk, and Officer Smith arrested her “for interfering with
the proceedings that’s going on here for the investigation [sic.].”44
Appellant did not take any action toward Officer Smith.45 She did not touch
him.46 She did not block his vehicle with her body and she did nothing to physically
obstruct the officer.47 The alleged interference consisted only of arguing with or
questioning Officer Smith.48 She did nothing to physically interfere with Officer
Smith’s investigation.49 She merely “delayed” Officer Smith.50
Appellant’s conduct amounted to mere speech. This is the exact situation
addressed by Carney. Appellant only questioned the officer, delaying his
investigation. As the Carney Court correctly stated, “speech is a statutory defense to
the offense [of Interference with Public Duties] even if the end result is ‘stalling’” a
42
(Rep.’s R. vol. 2 at 42:12-13; 74:6-17).
43
(Rep.’s R. vol. 2 at 41:15; 74:6-19).
44
(Rep.’s R. vol. 2 at 42:20-22).
45
(Rep.’s R. vol. 2 at 79:8-11).
46
(Rep.’s R. vol. 2 at 79:12-13).
47
(Rep.’s R. vol. 2 at 14-19).
48
(Rep.’s R. vol. 2 at 79:20-22).
49
(Rep.’s R. vol. 2 at 80:2-3).
50
(Rep.’s R. vol. 2 at 79:25-80:2).
13
police officer’s investigation.51 This Court should reverse Appellant’s conviction and
render an acquittal.
Prayer
Because Appellant’s conduct, like David Carney’s conduct, amounted to
nothing more than speech, no rational fact finder could have found that the State
proved its case and negated the statutory defense beyond all reasonable doubt. Like
the Carney Court, this Court should reverse Appellant’s conviction and render an
acquittal.
Respectfully submitted,
/s Charles Pelowski
Charles Pelowski
State Bar No. 24061053
121 E. Myrtle
Angleton, Texas 77515
Telephone: (979) 849-8526
Facsimile: (979) 848-1877
charlie@smbattorney.com
ATTORNEY FOR APPELLANT,
BRITTANY RAE BOOKER
51
Carney, 31 S.W.3d at 398.
14
Certificate of Compliance
I, Charles Pelowski, attorney for Appellant, hereby certify that this document
contains 1,787 words, exclusive of the content excepted by Tex. R. App. Pro.
9.4(i)(1). This is a computer-generated document, and I have relied on the word
count of the computer program used to prepare this document.
/s Charles Pelowski
Proof of Service
I, Charles Pelowski, attorney for Appellant, hereby certify that I served a true and
accurate copy of the foregoing appellate brief to John Rolater, attorney for the State
of Texas, by electronic service.
/s Charles Pelowski
15