James T. Campbell Justice

On Appeal from the County Court at Law No. 1 Wichita County, Texas
Trial Court No. 58017-E, Honorable Gary Butler, Presiding

MEMORANDUM OPINION

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

Appellant Byrias Edward Roberson was charged by information with resisting arrest. A jury found him guilty. Punishment was tried to the court, which sentenced appellant to sixty-four days' confinement in the county jail and a $500 fine. On appeal, appellant challenges the sufficiency of evidence establishing an element of the State's case and argues the trial court erred by not quashing the information. We will overrule both of appellant's issues and affirm the judgment of the trial court.

Background

Five uniformed Wichita Falls, Texas, police officers went to appellant's residence to serve a "high-risk" felony warrant for appellant's arrest. Appellant occupied the residence along with his wife and his mother. Three of the officers approached the front door. Appellant first opened the door but, after some exchanges with the officers, attempted to close the door quickly. The officers testified they pushed their way inside, overcoming appellant's efforts to keep them out.

Once inside, officers testified, they undertook to handcuff appellant. One testified that as they attempted to place appellant's arms behind his back, appellant was "flailing his arms, not being compliant, just jerking away from us, trying to pull away from us." Another testified that on entering the house he "observed [appellant] actively resisting by pushing the officers away, pulling away from them." He further said appellant was "thrashing his arms, pushing away from the officers, trying to push them away, pulling his arms away from their grips as they were trying to handcuff him."

During his testimony, one officer was permitted to stand and demonstrate for the jury what occurred as they attempted to place appellant in handcuffs. Although the record does not describe his demonstration, he told the jury, "So [appellant] was more like jerking arms like this and moving forward that way, which makes it hard to hold on to and bring his arm to the rear."

The officers took appellant to the floor. They eventually applied a taser, which, one officer explained, was "standard protocol" because appellant was actively resisting arrest.

Appellant's wife testified in his defense. She testified the door was completely closed and locked when the three officers burst into the room. She said appellant complied with the officers' orders without resisting.

Analysis

First Issue

In his first issue, appellant asserts the evidence was insufficient to sustain his conviction for resisting arrest because the evidence he used force against the arresting officer was insufficient.

When conducting a sufficiency review, we examine the evidence to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We review all the evidence in the light most favorable to the verdict and assume the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007).

Sufficiency of the evidence is measured by the elements of the offense as defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury charge "sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id.

As fact finder, the jury is the sole judge of the credibility of the witnesses and may choose to believe all, some, or none of the testimony the parties presented. Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008); Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991); Williams v. State, 290 S.W.3d 407, 412 (Tex. App.—Amarillo 2009, no pet.).

Section 38.03 of the Penal Code provides in relevant part, "A person commits an offense 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 . . . ." TEX. PENAL CODE ANN. § 38.03(a) (West 2011). The elements of the offense of resisting arrest, as applicable to the present case, are a person: (1) "intentionally prevents or obstructs"; (2) "a person he knows is a peace officer"; (3) "from effecting an arrest"; (4) "by using force against the peace officer." Dobbs v. State, 434 S.W.3d 166, 170-71 (Tex. Crim. App. 2014) (citing TEX. PENAL CODE ANN. § 38.03(a)).

Within the fourth element, "using force against the peace officer," the word "force" means "violence, compulsion, or constraint exerted upon or against a person or thing." Dobbs, 434 S.W.3d at 171. The term "against" means "in opposition or hostility to"; "contrary to"; "directly opposite"; "in the direction of and into contact with"; or "in a direction opposite to the motion or course of." Id. Thus "using force against the peace officer" means "violence or physical aggression, or an immediate threat thereof, in the direction of and/or into contact with, or in opposition or hostility to, a peace officer . . . ." Id.

In Finley v. State, 484 S.W.3d 926 (Tex. Crim. App. 2016) the defendant Finley argued the evidence was insufficient to support his conviction for resisting arrest because a rational trier of fact could not have found beyond a reasonable doubt that he used force against a peace officer who was trying to place him in handcuffs. Id. at 927. The arresting officer testified that Finley, "'clench[ed] up, pull[ed], and tr[ied] to pull his arm away from me. And I—I could not get him fully under control . . . .'" Id. at 928-29. The officer further testified that while he pulled Finley's right arm back, Finley kept pulling his arm forward toward his body—the opposite direction from the officers' efforts. The officer explained that he and another officer then pinned Finley against a door because Finley actively pulled away and attempted to pull his arms in front of himself. Id. at 929. Applying the definitions from Dobbs to the facts before it, the Court of Criminal Appeals found the evidence of Finley's use of force or violence against the officers sufficiently supported his conviction for resisting arrest. Id.

Here, an officer testified that appellant resisted arrest by refusing "to place his arms behind his back, flailing, pulling away from us, jerking." Another said appellant was "thrashing his arms, pushing away from the officers, trying to push them away, pulling his arms away from their grips as they were trying to handcuff him." Appellant concedes in his brief that "he may have tried to pull away from the officers . . . ." Appellant's wife testified appellant complied with the officers' commands. It was the role of the jury, as sole judge of the credibility of witnesses and the weight to be given their testimony, to resolve the conflict in the versions of events presented. The verdict requires us to assume the jury found the officers' testimony credible over that given by appellant's wife. Rollerson, 227 S.W.3d at 724. And, in light of the definitions of statutory terms set out in Dobbs, and their application in Finley to facts similar to those at hand, we find the evidence in this case sufficiently supports the jury's implicit finding that appellant used force against an arresting peace officer. Appellant's first issue is overruled. Second Issue

In his second issue appellant asserts the trial court erred by overruling his motion to quash the information. The information alleged in pertinent part that appellant "did then and there intentionally prevent or obstruct [an officer], a person the defendant knew to be a peace officer, from effecting an arrest of the defendant, by using force against the said peace officer."

Appellant contends the information should have defined the specific manner and means of force used; that is, whether pushing the door against the officers or briefly fighting with them constituted the forceful resistance alleged in the information.

Because the sufficiency of an information is a question of law, we review a trial court's denial of a motion to quash de novo. See Garcia v. State, No. 02-15-00315-CR, 2016 Tex. App. LEXIS 9376, at *3-4 (Tex. App.—Fort Worth Aug. 25, 2016, pet. refused) (mem. op., not designated for publication) (discussing indictment) (citing State v. Rosseau, 396 S.W.3d 550, 555 n.6 (Tex. Crim. App. 2013)).

The rules with respect to allegations in an indictment and the certainty required apply also to an information. TEX. CODE CRIM. PROC. ANN. art. 21.23 (West 2009). "The offense must be set forth in plain and intelligible words." TEX. CODE CRIM. PROC. ANN. art. 21.02(7) (West 2009). "The certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense." TEX. CODE CRIM. PROC. ANN. art. 21.04 (West 2009). A charging instrument is sufficient if it "charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged . . . ." TEX. CODE CRIM. PROC. ANN. art. 21.11 (West 2009). Generally, an indictment that tracks the language of a statute satisfies constitutional notice requirements. State v. Mays, 967 S.W.2d 404, 406 (Tex. Crim. App. 1998). But "[a] statute which uses an undefined term of indeterminate or variable meaning requires more specific pleading in order to notify the defendant of the nature of the charges against him." Mays, 967 S.W.2d at 407.

In Tullous v. State, 23 S.W.3d 195, 197-98 (Tex. App.—Waco 2000, pet. refused) the appellant was convicted of resisting transportation under section 38.03(a). On appeal he argued the trial court erred in overruling his motion to quash the information because it did not provide him adequate notice of the manner and means by which he committed the offense. To resolve the issue the Waco court considered whether "force," as used by section 38.03(a), is a term of indeterminate or variable meaning requiring more specific pleading. 23 S.W.3d at 197. Analogizing from sexual assault cases under the predecessor statute for that offense, the court reached the conclusion a charging instrument alleging resisting transportation under section 38.03(a) need not allege the character of the force in order to provide the accused with adequate notice. Id. at 198; see Ritz v. State, No. 11-12-00037-CR, 2014 Tex. App. LEXIS 1131, at *10 (Tex. App.—Eastland January 31, 2014, no pet.) (mem. op., not designated for publication) (citing Tullous).

The information in the present case tracked the statute. Like the Waco court, we find an allegation of the character of the force intentionally used against the peace officer to prevent or obstruct the officer from effecting appellant's arrest was not necessary to provide appellant adequate notice. 23 S.W.3d at 198. In this case, whether the force appellant used against the officers to resist arrest was the act of closing the door against them or that of fighting with them are facts merely evidentiary in nature. "An information need not set forth facts which are 'merely evidentiary in nature.'" Id. at 196 (quoting Mays, 967 S.W.2d at 406).

We conclude appellant received sufficient notice of the offense with which he was charged. Appellant's second issue is overruled.

Conclusion

Having overruled appellant's two issues, we affirm the judgment of the trial court.

James T. Campbell

Justice Do not publish.