Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-16-00041-CR
Shawn Leonard ELAHEE,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law No. 2, Guadalupe County, Texas
Trial Court No. CCL-15-0618
Honorable Frank Follis, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Marialyn Barnard, Justice
Patricia O. Alvarez, Justice
Jason Pulliam, Justice
Delivered and Filed: December 14, 2016
AFFIRMED
A jury found appellant Shawn Elahee guilty of resisting arrest, and the trial court sentenced
him to one-year probation. In his sole point of error, Elahee contends the evidence is legally
insufficient to support his conviction. We affirm the trial court’s judgment.
BACKGROUND
After receiving a dispatch for an assault in progress, Officer Ricard Aleman arrived at
Elahee’s residence and found a woman, later identified as Elahee’s wife, and a young child
standing outside. The woman was crying and holding her throat, stating she was hurt. Officer
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Aleman observed a slight redness around the bottom of her neck. He did not detect any injuries
on the child, but noted that the child appeared frightened. After speaking with the woman, Officer
Aleman went inside the home and found Elahee sitting on the floor. Officer Aleman immediately
noticed a strong odor of alcohol coming from Elahee. When he asked Elahee to stand, Elahee
appeared to have trouble standing, suggesting to him that Elahee was intoxicated. Officer Aleman
also described Elahee as aggressive, stating he repeatedly clenched his fists and told him to leave.
At that point, Officer Aleman decided to place Elahee in handcuffs for his own safety.
Shortly thereafter, while Officer Aleman escorted Elahee outside, Officer Colton
Armstrong arrived. Both officers then attempted to place Elahee in the back of Officer Aleman’s
patrol car, but Elahee used his body as leverage against the patrol car to prevent himself from being
placed inside. According to Officer Aleman, Elahee “jerk[ed] back” from the car and against the
officers, pushing the officers backwards. Because they were unable to place Elahee into the patrol
car, the officers called for a transport van and back up. When the van arrived — along with two
other officers — Elahee was sitting on the grass in the front yard, refusing to stand. Instead, Elahee
laid down on his back, forcing the four officers to pick him up by his arms and legs and place him
in the van. Elahee then used his feet to push against the van to prevent the officers from placing
him inside. After several failed attempts to secure Elahee in the van, the officers “dry stunned”
Elahee with a taser; however, it was ineffective. Eventually, Elahee gave up and allowed the
officers to place him into the van.
When the officers and Elahee arrived at the police station, Elahee was asleep. Because he
was sleeping, the officers placed Elahee on a stretcher to take him to a detox cell; however, Elahee
woke up and began to struggle. According to Officer Aleman, Elahee “pulled off and — and it
was just — he pulled off and was going to stand up and almost like fight us.” The officers had to
pin down Elahee to restrain him.
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Elahee was ultimately charged by information with two misdemeanors: assault causing
bodily injury — family violence and resisting arrest. With respect to the resisting arrest charge,
the information stated Elahee intentionally prevented Officer Aleman from effecting an arrest by
using force against that officer. At the conclusion of a jury trial, the jury found Elahee not guilty
of assault, but guilty of resisting arrest. The trial court sentenced Elahee to one-year probation.
Elahee then perfected this appeal.
ANALYSIS
In his sole point of error, Elahee contends the evidence is legally insufficient to support his
conviction because the State failed to establish he used force against Officer Aleman’s physical
person as required by section 38.03(a) of the Texas Penal Code. See TEX. PENAL CODE § 38.03(a)
(West 2011). According to Elahee, the evidence established that he used force only against “the
officer’s broader goal of effectuating an arrest” by pushing away from the officer’s patrol car to
avoid being placed in the car, which under Dobbs v. State, is not the type of force covered by the
plain language of section 38.03(a). See 434 S.W.3d 166, 173 (Tex. Crim. App. 2014).
Standard of Review
When reviewing sufficiency of the evidence in a criminal case, we apply the Supreme
Court’s legal sufficiency standard as set out in Jackson v. Virginia, 443 U.S. 307 (1979). Dobbs,
434 S.W.3d at 170; Ford v. State, 444 S.W.3d 171, 177 (Tex. App.—San Antonio 2014), aff’d,
477 S.W.3d 321 (Tex. Crim. App. 2015) (citing Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.
App. 2010)). Under this standard, we consider 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 offense beyond a reasonable doubt. Dobbs, 434 S.W.3d at 170; Mayberry v. State, 351
S.W.3d 507, 509 (Tex. App.—San Antonio 2011, pet. ref’d) (citing Jackson, 443 U.S. at 319).
We consider all the evidence in the record, whether direct or circumstantial, noting that
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circumstantial evidence alone may be sufficient to establish guilt of an offense. Dobbs, 434
S.W.3d at 170. We also remain mindful that we may not reweigh the evidence or substitute our
judgment for that of the jury. Orellana v. State, 381 S.W.3d 645, 653 (Tex. App.—San Antonio
2012, pet. ref’d). The jury is the sole judge of the credibility and weight to be given to the
testimony of the witnesses, and the jury may accept or reject all or any part of a witness’s
testimony. Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). In the event of
conflicting evidence, we presume the jury resolved conflicts in favor of the verdict, and we defer
to that determination. Dobbs, 434 S.W.3d at 170.
Applicable Law
A person commits the offense of resisting arrest “if he intentionally prevents or obstructs
a person he knows is a peace officer … from effecting an arrest, search, or transportation of the
actor or another by using force against the peace officer or another.” Id. § 38.03(a); see Finley v.
State, 484 S.W.3d 926, 927–28 (Tex. Crim. App. 2016); Dobbs, 434 S.W.3d at 170. Recently, in
Dobbs, the Texas Court of Criminal Appeals defined the phrase “by using force against a peace
officer or another” within the context of the statute. Dobbs, 434 S.W.3d at 173; see also Finley,
484 S.W.3d at 928. In that case, Dobbs was convicted of resisting arrest under section 38.03(a)
after he held a gun to his head and threatened to shoot himself when officers attempted to arrest
him. Dobbs, 434 S.W.3d at 173; see also Finley, 484 S.W.3d at 928. In determining whether the
evidence was legally sufficient to support the defendant’s conviction, the court found the word
“force” required some sort of “violence, compulsion, or constraint exerted upon or against a person
or thing,” and the word “against” meant “in opposition or hostility to,” “contrary to,” “directly
opposite,” “in direction of and into contact with,” or “in a direction opposite to the motion or
course of.” Dobbs, 434 S.W.3d at 173; see also Finley, 484 S.W.3d at 928. Applying a plain
meaning approach, the court held the “use of force ‘against’ an officer must necessarily be in
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opposition to, or in the direction of and/or in contact with, the officer himself, meaning the officer’s
physical person.” Dobbs, 434 S.W.3d at 173; see also Finley, 484 S.W.3d at 928. The court
further stated that “[a] use of force that is against the officer’s goal of effectuating an arrest in the
sense that it is hostile to or contrary to that goal, but that is not directed at or in opposition to the
officer, is not covered by the plain terms of the statute.” Dobbs, 434 S.W.3d at 173; see also
Finley, 484 S.W.3d at 928. With these definitions in mind, the court ultimately held Dobbs’s
actions did not constitute resisting arrest because at no point did he use force against the officers.
Dobbs, 434 S.W.3d at 173; see also Finley, 484 S.W.3d at 928.
Two years later in Finley v. State, the court revisited the application of the section 38.03(a),
holding that a defendant “who actively pulled away” from an officer who was attempting to arrest
him was resisting arrest. 484 S.W.3d at 928. In that case, there was evidence the defendant tried
to pull his arm “forward towards his body — in the opposite direction from the officer’s efforts”
when an officer tried to handcuff him. Id. at 928–29.
Application
Here, the jury heard testimony regarding Elahee’s interaction with the officers from Officer
Aleman, Officer Armstrong, Elahee’s wife, and Elahee. Officer Aleman testified that when he
first encountered Elahee, he detected a strong alcohol odor coming from Elahee, who immediately
“told me to get out of his house.” Officer Aleman described Elahee as 6' tall, weighing
approximately 300 pounds. According to Officer Aleman, Elahee seemed aggressive because he
repeatedly clenched his fists and refused to stand up when asked. Officer Aleman testified that
out of precaution — primarily due to Elahee’s size and demeanor — he placed Elahee in handcuffs
and escorted him outside. Once Officer Armstrong arrived, both officers attempted to place Elahee
in the patrol car; however, Elahee struggled, refusing to be placed in the car.
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According to Officer Aleman, when he opened the patrol car door, Elahee kept “pushing
off of it” with his body. Officer Aleman stated Elahee was “using his body to jerk back and we
just couldn’t place him inside the vehicle.” As a result, a series of pushes occurred. Officer
Aleman explained when Elahee pushed against the car, the officers pushed Elahee back, trying to
push him into the car, resulting in Elahee pushing the officers back.
Officer Armstrong also described this series of pushes. According to Officer Armstrong,
when they were attempting to put Elahee into the patrol car, Elahee “leaned back against me so I
went back with him.” Officer Armstrong stated that his “leaning back was the direct cause of what
he [Elahee] did.”
According to Elahee’s wife, Elahee was “really aggressive.” She described Elahee’s
aggressiveness as physical, stating he used his body against the police officers. “I saw his arms,
you know, popping back and forth and his chest buffing forward and him being eye to eye with
the gentleman.” She also testified the officers tried to place Elahee in the patrol car multiple times,
stating “[t]here was a lot of struggle.” When specifically asked whether Elahee pushed or pulled
back towards the officers, she testified, “Yes, there was a lot of body movement, a lot of resistance,
a lot of his body coming up against their bod[ies].”
The jury also heard testimony from Elahee himself. Elahee testified when Officer Aleman
arrived, he was startled and asked the officer to leave. Elahee testified the officer left, but returned
and the two of them talked in his doorway. According to Elahee, he walked outside with the
officer, at which point another officer arrived. Elahee testified the officers told him he was going
to be arrested, and then an officer grabbed his arm and swung it behind his back. When he asked
why he was being arrested, an officer jumped on his back and yelled at him to stop resisting and
then tased him repeatedly. Elahee further testified that at no point did he resist being arrested;
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rather, he simply did not assist the officers because he just sat down and refused to move. Elahee
also denied that the officers tried to place him in the patrol car.
Viewing this evidence in the light most favorable to the verdict, we conclude a rational
trier of fact could have found beyond a reasonable doubt that Elahee used force against Officer
Aleman. See Dobbs, 434 S.W.3d at 170; Ford, 444 S.W.3d at 177. Here, the jury heard evidence
that Elahee pushed back against the patrol car and both of the officers to avoid being placed inside
the car. Both officers and Elahee’s wife testified Elahee used his body against the officers, directly
pushing against Officer Aleman in the process. Although Elahee denied that the officers tried to
place him in the patrol car or that a struggle occurred, the jury was free to reject his testimony and
accept the testimony of the officers and Elahee’s wife that Elahee physically used his body against
both of the officers to avoid being arrested. See Lancon, 253 S.W.3d 707.
With regard to Elahee’s argument that his actions did not constitute force against Officer
Aleman, but rather force against Officer Aleman’s “broader goal of effectuating an arrest,” we
disagree. In Finley, the Texas Court of Criminal Appeals recently highlighted the broad definition
of force, specifically holding that “pulling away from an officer satisfies the ‘in opposition or
hostility to’ the police officers requirement,” and thus, constitutes force against an officer. 484
S.W.3d at 928. Here, there was evidence Elahee used force to resist being arrested by pushing
away from the patrol car and Officer Aleman. Accordingly, we hold a reasonable trier of fact
could have found beyond a reasonable doubt that much like pulling away from an officer, pushing
against the patrol car and the officers constitutes force against an officer under section 38.03. See
id. Officer Aleman specifically testified Elahee used his body to “jerk back” when he tried to push
Elahee into the car. Officer Aleman further testified “he actually pushed us back,” causing both
his and Officer Armstrong’s bodies to move. Accordingly, when viewing this evidence in the light
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most favorable to the verdict, we conclude Elahee, much like the defendant in Finley, used force
against Officer Aleman. See id.
CONCLUSION
Based on the foregoing, we overrule Elahee’s sole point of error and affirm the trial court’s
judgment.
Marialyn Barnard, Justice
Do Not Publish
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