Franks v. State

Full title: DAVID FRANKS, Appellant, V. STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Eleventh District, Eastland

Date published: Aug 11, 2005

No. 11-04-00187-CR (Tex. App. Aug. 11, 2005)

Opinion

No. 11-04-00187-CR

August 11, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).

Appeal from Howard County.

Panel consists of: WRIGHT, J., and McCALL, J., and DICKENSON, S.J.¹

1 Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.

OPINION

BOB DICKENSON, Senior Justice.

After a nonjury hearing, the trial court revoked community supervision and sentenced David Franks to confinement for five years. We affirm.

Background Facts

Appellant was convicted of burglary of a vehicle and placed on community supervision on August 23, 2000. The Community Supervision and Corrections Department filed a motion for revocation which alleged that appellant violated six of the terms and conditions of his community supervision. The State waived two of the allegations, and there was testimony on the other four allegations. The trial court made a finding of true on only one of the alleged violations. That was the allegation in Paragraph No. 3, and it reads in relevant part as shown:

[O]n or about the 10th day of April, 2004, in the County of Howard, State of Texas, David Franks [did] then and there intentionally prevent or obstruct Deputy David Wood, a person he knew to be a peace officer, from effecting an arrest or search of David Franks, by using force against said peace officer, to-wit: struggling and jerked up and to the side which put Deputy Wood's arm in unnatural position and dislocated his right shoulder.

Testimony about that allegation is all that need be discussed. There were six witnesses who testified at the revocation hearing on June 2, 2004. Appellant's probation officer and two law enforcement officers testified for the State. The other three testified for appellant. Deputy David Wood testified that he was employed by the Howard County Sheriff's Office and that he was a certified peace officer. Relevant portions of his testimony read as shown:

Q: It's been alleged in this Motion to Revoke that on or about the 10th day of April, you had some contact with David Franks, the Defendant; is that correct?

A: That's correct, yes, sir.

Q: And it's further alleged that you were trying to arrest Mr. Franks and he resisted you; is that right?

A: That's correct.

Q: Explain to the Court what happened.

A: Myself and Deputy Pat Carter went to a residence on the southeast part of Big Spring to serve a felony warrant on Mr. Franks, I believe, for deadly conduct.

We arrived at the scene. A lady answered the door. . . . Upon searching a bedroom while opening the door, I observed Mr. Frank on the other side of the door.

I did not know him previous to that contact, but he fit the description of the wanted suspect. I advised him he was under arrest and he slammed the door in my face.

[DEPUTY WOOD TESTIFIED THAT HE CONTACTED THE DISPATCHER FOR ASSISTANCE. AFTER SEVERAL MORE OFFICERS ARRIVED, APPELLANT OPENED THE DOOR].

I gave him commands to go down on his knees, cross his ankles.

I approached him. We got him down on the ground, handcuffed him, got him up. At the point in which we got him to his feet, he continued to resist. The other officers kind of swarmed in and assisted with that situation. As we got to the door, he continued to jerk away and resist. I attempted to employ an upper body control hold at which time, in his thrashing motions, my right shoulder became dislocated.

Trial Court's Ruling

The trial court found that the evidence was sufficient to support a finding of "true" to the allegation in Paragraph No. 3 that appellant had used force against a police officer during appellant's arrest on April 10, 2004. The trial court then revoked appellant's community supervision.

Issue Presented for Review

Appellant argues that the trial court erred in revoking his community supervision because the evidence was both legally and factually insufficient to support the finding that he resisted arrest as alleged in the motion to revoke.

Opinion

An appellate court reviews a trial court's order revoking community supervision under an abuse of discretion standard. Cardona v. State, 665 S.W.2d 492, 493 (Tex.Cr.App. 1984); Jackson v. State, 645 S.W.2d 303, 305 (Tex.Cr.App. 1983). At a revocation hearing, the State bears the burden of proving by a preponderance of the evidence that the defendant violated the terms of community supervision. Cobb v. State, 851 S.W.2d 871, 873 (Tex.Cr.App. 1993). Proof of any one of the alleged violations is sufficient to support the revocation. Moore v. State, 605 S.W.2d 924, 926 (Tex.Cr.App. 1980); Sanchez v. State, 603 S.W.2d 869, 871 (Tex.Cr.App. 1980). At a revocation hearing, the trial court is the sole judge of the credibility of the witnesses and of the weight to be given to the testimony; and, on appeal, the evidence must be viewed in the light most favorable to the trial court's ruling. Cardona v. State, supra at 493; Garrett v. State, 619 S.W.2d 172, 174 (Tex.Cr.App. 1981). TEX. PEN. CODE ANN. § 38.03 (Vernon 2003) provides in relevant part that a person commits an offense if he intentionally prevents or obstructs a peace officer from "effecting an arrest, search or transportation of the actor or another" by using force against the peace officer. The trial court did not abuse its discretion in revoking appellant's community supervision. The testimony by Deputy Wood was both legally and factually sufficient to support the trial court's finding that appellant used force against a peace officer during appellant's arrest on an outstanding warrant.

This Court's Ruling

The order of the trial court is affirmed.