Opinion
No. 05-03-00739-CR.
Opinion issued May 10, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Criminal Court No. 1, Dallas County, Texas, Trial Court Cause No. MA02-59265-A. Affirmed.
Before Justices MOSELEY, BRIDGES, and LANG-MIERS.
OPINION
Parker Ray Brown appeals his conviction for resisting arrest. A jury convicted appellant, and the trial court sentenced him to 365 days' confinement, probated for twenty-four months, and a fine of $1000. In four points of error, appellant argues the evidence is legally and factually insufficient to show he resisted arrest and that he used force against a peace officer as alleged in the information. We affirm the trial court's judgment. On the night of October 11, 2002, Dallas police officer Ernest Fierro was working off-duty at a restaurant in the Dallas West End. Fierro was in full uniform and had his badge and weapons with him. The restaurant had hired Fierro because it was Texas-OU weekend, and large crowds were anticipated. At one point, a restaurant employee made Fierro aware that a group of people refused to move out of a walking area inside the restaurant. Fierro asked the group to sit down, and everyone but appellant complied. Fierro asked appellant again to sit down, and appellant turned to face Fierro and said "I haven't done a fucking thing wrong." When appellant spoke, Fierro immediately smelled alcohol on his breath, and appellant took a defensive stance. Fierro determined appellant was publicly intoxicated, and he asked appellant to "discuss this outside." With his hand on the small of appellant's back, Fierro led appellant toward the entrance. As they were coming around an L-shaped receiving area at the front of the restaurant, appellant shoved Fierro into the L-shaped fixture and attempted to flee. Fierro was able to hold on to appellant's wrist and restrain appellant before leading him outside and arresting him. Appellant was charged with resisting arrest, a jury convicted him, and this appeal followed. In four points of error, appellant argues the evidence is legally and factually insufficient to show he resisted arrest or that he forced Fierro against a "counter" with appellant's "torso" as alleged in the information. When we review the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App. 1991). The inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Turner, 805 S.W.2d at 427. The jury, as trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). As such, the jury may choose to believe or disbelieve all or any part of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim. App. 1986); McCray v. State, 861 S.W.2d 405, 407 (Tex. App.-Dallas 1993, no pet.). A jury is also permitted to make reasonable inferences from the evidence. See Stahle v. State, 970 S.W.2d 682, 686-87 (Tex. App.-Dallas 1998, pet. ref'd). When reviewing the factual sufficiency of the evidence, we view all the evidence, but not in the light most favorable to the prosecution. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim. App. 1996). The question is whether, considering all of the evidence in a neutral light, a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02 (Tex.Crim.App. April 21, 2004). Evidence can be factually insufficient if (1) the evidence is too weak to support the finding of guilt beyond a reasonable doubt, or (2) contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. Here, the information charged appellant with resisting arrest in the following terms:
then and there intentionally prevent and obstruct E. FIERRO, a person that the defendant knew to be a peace officer, from effecting the arrest, search and transport of the said defendant, by using force against said peace officer, to-wit: by forcing said peace officer to and against a counter with defendant's torso. . . .See Tex. Pen. Code Ann. § 38.03(a) (Vernon 2003). Fierro testified that he was in full uniform and had his badge and weapons with him on the night he encountered appellant. Fierro was in the process of moving appellant outside to arrest him for public intoxication when appellant's "body shoved [Fierro]" into an L-shaped fixture and then attempted to flee. Fierro "grabbed [appellant's] hand to hold his arm as he attempted to run away going out the front door." Fierro testified he would have fallen down if the counter had not been there. In challenging the sufficiency of the evidence to show he resisted arrest, appellant cites the testimony of his companions that Fierro actually pushed appellant into the bar and that Fierro merely told appellant to leave the restaurant and was not in the process of effecting an arrest inside the restaurant. However, the jury was free to believe Fierro's testimony and disbelieve the testimony of appellant's witnesses. See Sharp, 707 S.W.2d at 614; McCray, 861 S.W.2d at 407. Further, the jury was free to make the reasonable inference that, when his "body shoved" Fierro against the L-shaped fixture, appellant forced Fierro to and against a counter with his torso. See Stahle, 970 S.W.2d at 686-87. Viewing the evidence in the light most favorable to the prosecution, we conclude a rational jury could have found the essential elements of the crime of resisting arrest beyond a reasonable doubt. See Turner, 805 S.W.2d at 427. Further, after reviewing all the evidence in a neutral light, we cannot conclude: (1) the evidence is too weak to support the finding of guilt beyond a reasonable doubt, or (2) the contrary evidence establishes the beyond-a-reasonable-doubt standard could not have rationally been met. See Zuniga, slip op. at 8. We overrule appellant's first, second, third, and fourth points of error. We affirm the trial court's judgment.