ACCEPTED
06-14-00139-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
3/16/2015 2:50:11 PM
DEBBIE AUTREY
CLERK
In the
Court of Appeals for the
Sixth District of Texas at Texarkana FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
Donny Joe Curry, § 3/16/2015 2:50:11 PM
Appellant § DEBBIE AUTREY
Clerk
§
v. § No. 06-14-00139-CR
The State of Texas §
Appellee §
Trial Number CR1301508 in the
The County Court at Law No. 1 of Hunt County
The Honorable F. Duncan Thomas, Judge Presiding
STATE’S BRIEF
Greg Willis
County Attorney Pro Tem
Hunt County, Texas
Oral argument is requested if Claire D. Miranda
Appellant also requests argument Special Prosecutor
2100 Bloomdale Rd., Suite 200
McKinney, TX 75071
(972) 548-4323
FAX (214) 491-4860
State Bar No. 24037121
cmiranda@co.collin.tx.us
Table of Contents
Index of Authorities .................................................................................. ii
Statement Regarding Oral Argument ...................................................... 1
Statement of the Case ...............................................................................1
Statement of Facts..................................................................................... 1
Summary of the State’s Arguments .......................................................... 6
Argument & Authorities ...........................................................................7
Issue One ( Sufficiency of the Evidence; Resisting Arrest )....................7
The evidence is sufficient to sustain Appellant's
conviction for resisting arrest. Appellant
intentionally obstructed a person he knew to be
a peace officer from effecting an arrest of
Appellant by using force against the officer.
I. Standard of Review ...............................................................................7
II. The State proved that Appellant was guilty of Resisting Arrest. ......8
A. Appellant used force against a peace officer who was
attempting to arrest him ......................................................... 8
B. Appellant acted with intent to obstruct his arrest ................. 9
Prayer ...................................................................................................... 14
Certificate of Service ............................................................................... 15
Certificate of Compliance ........................................................................ 15
i
Index of Authorities
Statutes, Codes, and Rules
Tex. Penal Code
§ 6.03(a)............................................................................................. 11
§ 38.03 ................................................................................................. 9
§ 38.03(a)............................................................................................. 8
§ 38.03(c) ............................................................................................. 8
Cases
Brooks v. State,
323 S.W.3d 893 (Tex. Crim. App. 2010) ............................................. 7
Dobbs v. State,
434 S.W.3d 166 (Tex. Crim. App. 2014) ........................................... 13
Hemphill v. State,
505 S.W.2d 560 (Tex. Crim. App 1974) ............................................ 12
Jackson v. Virginia,
443 U.S. 307 (1979) ............................................................................. 7
Montgomery v. State,
369 S.W.3d 188 (Tex. Crim. App. 2012) ......................................... 7, 8
Pumphrey v. State,
245 S.W.3d 85 (Tex. Crim. App. 2008) ..................................... 8, 9, 12
ii
Statement Regarding Oral Argument
The State does not believe oral argument will assist the Court
in resolving the issues in this case. However, if oral argument is
granted to Appellant, the State requests the opportunity to respond.
Statement of the Case
This is an appeal of a judgment and sentence in a criminal case
for the County Court at Law No. 1 of Hunt County, Texas. Appellant
was convicted on August 1, 2014. Notice of Appeal was given on
August 1, 2014. The clerk’s record was filed on October 1, 2014. The
reporter’s record was filed on November 3, 2014.
Appellant pleaded not guilty to the Class A misdemeanor
offense of Resisting Arrest to the Court. The Court found Appellant
guilty and sentenced him to 275 days confinement.
Statement of Facts
On August 26, 2013, Officer Samantha Manrique of the
Commerce police department was on routine patrol on Highway 24 in
Commerce, Hunt County, Texas 9 RR 63. At approximately 4:00 pm.,
Officer Manrique observed Appellant’s car swerve to the left, nearly
striking the median and causing an accident, before heading through
1
an intersection. 9 RR 63. Appellant’s car had a broken taillight and
a homemade paper license plate. 9 RR 63. Due to these traffic
violations, Officer Manrique signaled for Appellant to pull over by
activating the overhead lights on her patrol car, and she performed a
traffic stop of Appellant’s car. 9 RR 64.
When she approached the driver side window, Officer Manrique
noted Appellant also had a handmade registration sticker and
handmade paper inspection sticker that matched his “license plate”.
9 RR 67; 12 RR 39-40. Officer Manrique asked for Appellant’s
driver’s license. 9 RR 64-65 Appellant stated he had no driver license
and no insurance. 9 RR 64-65 During her detention of Appellant,
Officer Manrique asked Appellant’s name. 9 RR 64-65 Appellant
responded that his first name was “Donny” and stated he did not wish
to give his last name as it was a family name. 9 RR 64-65. Appellant
refused to give any further identifiers. 9 RR 70-71. After speaking
with him further, Appellant handed Officer Manrique paperwork
purporting to explain why he did not need to have a driver license,
insurance, or license plate. 9 RR 66. The paperwork did not provide
any identifying information. 9 RR 70-71. Appellant told Officer
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Manrique he was a sovereign citizen. 9 RR 66. Due to a concern
about sovereign citizens’ proclivity toward violent behavior, Officer
Manrique called her lieutenant for backup. 9 RR 66, 122-123.
Officer Manrique had to give dispatch a full description of the
vehicle, as she could not identify the driver from his own statements
or his “license plate”. 9 RR 66 Lieutenant Mike Pehl and Sergeant
Steve Scott arrived on scene as backup. 9 RR 68. Manrique told
Lieutenant Pehl that Appellant identified himself as a sovereign
citizen. 9 RR 125-126. Lieutenant Pehl was aware through training
and experience that sovereign citizens believe in a totally different
form of government that derives from the law of man and the law of
the land, rather than from the constitution. 9 RR 124-125.
Lieutenant Pehl and Sargent Scott, both wearing police identification
on their clothing, approached Appellant’s car and Lieutenant Pehl
asked Appellant to identify himself. 9 RR 127. Lieutenant Pehl
identified himself as a peace officer to Appellant. 9 RR 128. He
informed Appellant that Appellant had to identify himself to a peace
officer or he was in violation of the law. 9 RR 127-128. Appellant
refused to identify himself but told Lieutenant Pehl he wanted to
3
show him something. 9 RR 127-129 Appellant then reached into the
top of his briefcase. 9 RR 128-129. Due to his fear about sovereign
citizens’ potential for violent behavior, Lieutenant Pehl drew his
weapon from his holster and told Appellant to show him his hands. 9
RR 128. Appellant pulled his hands from the briefcase, Lieutenant
Pehl holstered his weapon and grabbed Appellant’s arm to pull
Appellant from the car. 9 RR 128. Lieutenant Pehl pulled on
Appellant’s arm several times but was not able to pull Appellant from
the car. 9 RR 128-129. Lieutenant Pehl asked Officer Manrique for
her Taser, which Manrique handed to him, and told Appellant he
would tase him if he did not step out of the vehicle. 9 RR 129.
Appellant continued to refuse. 9 RR 129. Lieutenant Pehl then tased
Appellant. 9 RR 129.
Lieutenant Pehl continued trying to get Appellant out of the
car, this time from the passenger’s side, but Appellant locked his
arms on the steering wheel in resistance. 9 RR 97. Lieutenant Pehl
tased Appellant a second time, this time in his side, to try and get
Appellant compliant and was ultimately successful in pulling
Appellant bodily from the car. Once outside, Appellant continued to
4
flail about screaming. 9 RR 69-70, 129-130. Lieutenant Pehl held
onto Appellant’s torso area and was able to secure one handcuff. 9
RR 69-70, 129-170. Sergeant Scott had to secure the other handcuff
on Appellant. 9 RR 69-70. Appellant was placed into custody at that
time. 9 RR 69-70. Lieutenant Pehl located identifying paperwork in
Appellant’s car after the arrest. 9 RR 82.
5
Summary of the State’s Arguments
State’s Reply to Issue One
The evidence is sufficient to sustain Appellant's conviction for
resisting arrest. Appellant intentionally obstructed Lieutenant Pehl,
a person he knew to be a peace officer from effecting an arrest of
Appellant by using force against the officer.
6
Argument & Authorities
Issue One
(Sufficiency: Resisting Arrest)
The evidence is sufficient to sustain Appellant's conviction for
resisting arrest. Appellant intentionally obstructed a person he knew
to be a peace officer from effecting his arrest by using force against
the officer.
I. Standard of review
In a sufficiency review, the appellate court views the evidence in
the light most favorable to the prosecution and determines whether
any rational jury could have found the essential elements of the crime
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319
(1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010)
(plurality & concurring opinions). The jury is the sole judge of the
credibility of the witnesses and the weight to be given to their
testimonies, and the reviewing court must not usurp this role by
substituting its own judgment for that of the jury. Montgomery v.
State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). The duty of the
reviewing court is simply to ensure that the evidence presented
7
supports the jury’s verdict and that the State has presented a legally
sufficient case of the offense charged. Id. When the reviewing court
is faced with contradicting inferences, the court must presume that
the jury resolved any such conflicts in favor of the verdict, even if not
explicitly stated in the record. Id.
II. The State proved that Appellant was guilty of Resisting
Arrest
To prove resisting arrest as charged in the information, the
State had to prove that Appellant intentionally prevented or
obstructed a person he knew was a peace officer from effecting an
arrest, search, or transportation of the actor by using force against
the peace officer.” See Tex. Penal Code § 38.03(a); 9 RR 33 An offense
under this section is a Class A misdemeanor. Tex. Penal Code
§ 38.03(c).
A. Appellant used force against a peace officer who was
attempting to arrest Appellant
Appellant complains that the State evidence of resisting was
insufficient because his actions were not enough to amount to
resisting and that his interaction with officers was too brief to
encompass resisting behavior. Appellant cites to Pumphrey v. State,
8
to support his position on both points. 245 S.W.3d 85 (Tex. Crim.
App. 2008). The holding in Pumphrey—that a person can be properly
convicted of resisting where she pulled her arm away from an officer’s
force—closely matches the facts on appeal here and supports the
State’s position that Appellant’s actions on August 26, 2013,
amounted to resisting. Pumphrey states that the meaning of
resistance is “to exert oneself so as to counteract defeat.” Id. at 91.
Pumphrey ultimately holds that the word “against” in the context of
resisting arrest “as used by Section 38.03 of the Texas Penal Code,
does not require force directed at or toward the officer, but is also met
with any force exerted in opposition to, but away from, the officer,
such as a simple pulling away.” Id at 91. Nowhere does the court
state that the duration of the encounter is the deciding factor in a
resisting case. See id. Rather, it is a subject’s actions that dictate
resistance.
At the very least, Appellant met the definition of resisting
instituted in Pumphrey when he obstructed Lieutenant Pehl’s
attempt to arrest him by pulling away. As established on direct
examination:
9
Pehl: I opened the door of the vehicle. [Appellant] says, I
want to show you something. He reaches down into the top
of the briefcase. As he does, having knowledge of the
violence and proclivity of people of -- that are sovereign
citizens, I pull my firearm from my side, from my holster. I
level it on him, and I tell him to show me your hands.
Q. What does he do?
A. He immediately pulls his hands out of the briefcase and
holds them up like this. When he does, I holster my
weapon, and I grab his left arm, pulling it outside of the
open doorway of the vehicle.
Q. Does he come out?
A. Not initially. At this point, I pulled on him several
times, trying to bar his arm against the vehicle to induce a
certain amount of pain so he will not resist, that he will
come forth with the force that I apply, and he fails to do
so. 9 RR 128-129.
After this initial resistance, Appellant continued to obstruct
Lieutenant Pehl’s attempts to get Appellant from the car:
Pehl: I then tell the driver that I'm going to tase him if he
does not come out of the vehicle. He again starts to refuse
and argue with me. I remove the cartridge from the Taser.
I employ a drive-stun to the individual's rib cage. He
hollers and screams but locks his right arm into the
steering wheel, and I cannot pull him from the vehicle. 9
RR 129-130.
Lieutenant Pehl tasered Appellant again and Sergeant Scott, who
had been attending the passenger, came to assist. Between the two of
10
them, Lieutenant Pehl and Sergeant Scott were finally able to pull
Appellant from the car, although Appellant continued to exert force
against them:
Pehl: I grab [Appellant] around the upper chest. His arms
are flailing out to his side. I take him to the hood of the
patrol car, place him on the hood of the patrol car, pull his
arms behind his back with the assistance of Detective
Sergeant Scott. Handcuffs are then placed on the person,
and he's placed into a police vehicle by another officer. 9
RR 130.
Officer Manrique and Sergeant Scott likewise testified that Appellant
continued to “flail” and” “scream” once removed from the car and that
it took the force of two officers to secure handcuffs on Appellant. 9
RR 69-70.
The amount of time it took Appellant to resist is irrelevant.
Appellant clearly exerted force to obstruct his arrest on multiple
occasions during his interaction with Lieutenant Pehl.
A. Appellant acted with intent to obstruct an arrest
“A person acts intentionally, or with intent, with respect to the
nature of his conduct or to a result of his conduct when it is his
conscious objective to engage in the conduct or cause the result.” Tex.
11
Penal Code § 6.03(a). It is well settled that intent is a question of fact
to be determined by the trier of facts from all facts and circumstances
in evidence. Hemphill v. State, 505 S.W.2d 560, 562 (Tex. Crim. App
1974) Appellant argues that the State would have to prove it was his
intent to resist arrest and that Appellant did not have a clear
indication he was about to be arrested. App. Br. 16. To the contrary,
a reasonable person in Appellant’s position should know he was about
to be arrested. At the point Appellant was tased, Lieutenant Pehl
had already asked for his name, informed him he was in violation of
the law, removed his duty weapon from his holster and leveled it at
him, grabbed his arm, and attempted to pull him from the vehicle.
Appellant further argues that it was the effects of the taser, and not
Appellant’s intentional actions, that caused him to hold onto the
steering wheel. Aside from being completely conclusory, that theory
is irrelevant where the resisting behavior both preceded and followed
the taser activity, as discussed, supra.
The totality of the circumstances support the Court’s finding
beyond a reasonable that Appellant acted intentionally to obstruct
arrest. See Pumphrey, 245 S.W.3d at 91-92 (pulling away, squirming,
12
twisting, and struggling sufficient to prove resisting arrest); cf Dobbs
v. State, 434 S.W.3d 166, 173 (Tex. Crim. App. 2014) (evidence
insufficient to prove resisting where Dobbs held gun to his own head
and threatened to kill himself when officers attempted to arrest him).
This issue should be overruled.
13
Prayer
The State prays that this Court will affirm Appellant’s
conviction and sentence.
Greg Willis
County Attorney Pro Tem
Hunt County, Texas
/s/ Claire D. Miranda
Claire D. Miranda
Special Prosecutor
Asst. Criminal District Attorney
2100 Bloomdale Rd., Suite 200
McKinney, TX 75071
State Bar No. 24037121
(972) 548-4331
FAX (214) 491-4860
cmiranda@co.collin.tx.us
14
Certificate of Service
The State has e-served counsel for Appellant, the Honorable
Jason Duff, through the eFileTexas.gov filing system and sent a
courtesy copy by e-mail to jasonaduff@gmail.com on this, the 16th day of
March 2015.
/s/ Claire D. Miranda
Assistant Criminal District Attorney
Certificate of Compliance
This brief complies with the word limitations in Texas Rule of
Appellate Procedure 9.4(i)(2). In reliance on the word count of the
computer program used to prepare this brief, the undersigned attorney
certifies that this brief contains 2,073 words, exclusive of the sections
of the brief exempted by Rule 9.4(i)(1).
/s/ Claire D. Miranda
Assistant Criminal District Attorney
15