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Raymond v. State

Court of Appeals of Texas, El Paso
Jun 23, 1982
640 S.W.2d 678 (Tex. App. 1982)

Summary

holding evidence defendant simply pulled away was insufficient to show use of force against officer

Summary of this case from Yarbrough v. State

Opinion

No. 08-81-00153-CR.

June 23, 1982.

Appeal from the County Criminal Court, No. 1, Dallas County, Ben Ellis, J.

Kerry P. Fitzgerald, Dallas, for appellant.

Henry Wade, Criminal Dist. Atty., Dallas, Stanley Keeton, Richard Aguire, Luther C. Laman, Asst. Dist. Attys., for appellee.

Before WARD, OSBORN and SHULTE, JJ.


OPINION


Appellant was tried under a complaint and information for the misdemeanor offense of resisting arrest, alleged to have occurred on November 10, 1978. The first trial ended with a hung jury. The second trial resulted in a guilty verdict. Punishment was assessed at thirty days confinement, probated for twelve months, and a fine of $200.00. We reverse and render.

Appellant's Ground of Error No. One asserts that the evidence was insufficient to support a conviction. He contends that there was no evidence of force directed at the arresting officer, an essential element of the offense. Tex.Penal Code, Section 38.03(a). Appellate review of such a contention requires that the evidence be examined in a light most favorable to the verdict. Ahearn v. State, 588 S.W.2d 327, 336 (Tex.Cr.App. 1979).

The complainant, Chief of Police Mike Thornhill, testified that on November 9, 1978, he observed the Appellant commit several driving violations. On November 10, 1978, he drove to Appellant's home with Officer Mike Dupree. They arrived in a marked patrol vehicle. Dupree was in full police uniform; Thornhill had his badge pinned to his civilian shirt. Thornhill advised Appellant of the citations and asked him to sign them. Appellant denied any knowledge of the matters and walked away. Thornhill followed the Appellant, still seeking signatures. He had no intent to arrest at that point.

Appellant crawled under his vehicle, apparently to work on it. Thornhill asked him to come out, and Appellant refused. Thornhill began to pull on Appellant's leg. At first, Thornhill testified that Appellant kicked his hand away. He later repudiated the kicking allegation. Appellant then emerged from under the vehicle. Thornhill still had no intent to arrest Appellant, but continued asking for signatures on the citations. Appellant continued to deny knowledge of the traffic violations and refused to sign. Thornhill ordered Appellant to turn around, advising him that he was under arrest. He grabbed Appellant's right arm. Appellant pulled his arm out of Thornhill's grasp. This grabbing and jerking away sequence took place a second time. Appellant then submitted to arrest and handcuffing.

The testimony of Officer Dupree was identical to that of Thornhill, particularly as to the description of Appellant pulling his arm away. For that matter, Appellant's own version of the actual physical confrontation is consistent with the officers' testimony. The only question on appeal is whether the act of pulling his arm out of Officer Thornhill's grasp constituted "using force against the peace officer." We conclude that it does not.

The very language of Section 38.03 indicates that the required force must be directed at the officer or applied to him. Appellant appropriately points to the Practice Commentary to Section 38.03:

One who runs away or makes an effort to shake off the officer's detaining grip may be guilty of evading arrest under Section 38.04, but he is not responsible under this section.

The Practice Commentary has been cited by the Court of Criminal Appeals with apparent approval. Sutton v. State, 548 S.W.2d 697, 700 (Tex.Cr.App. 1977); Washington v. State, 525 S.W.2d 189, 190 (Tex.Cr.App. 1975).

In Sutton, the appellant was convicted of aggravated assault on a police officer. The appellate court reversed for failure to charge the jury on the lesser included offense of resisting arrest. It was undisputed that the appellant struck the arresting officer in the face with his arm, causing a gash.

In Washington, two arresting officers attempted to handcuff a 240-pound woman. She not only tried to break their grasp, but once partially handcuffed, dragged both officers a distance of ten feet. The court held that there was sufficient evidence to sustain a conviction for resisting arrest. Dragging the officers by the handcuffs constituted force directed against them and went beyond a simple effort to disengage. Id. at 190.

In Humphreys v. State, 565 S.W.2d 59, 61 (Tex.Cr.App. 1978), the court upheld a conviction where the appellant dislodged the arresting officer's arm by striking it. He followed that action with repeated blows which the officer blocked with his arms.

Striking an arresting officer's arm away constitutes force directed against the officer. This is distinctly different from the direction of force employed in simply pulling one's arm away. There is no danger of injury to the officer in the latter action.

The elements of violence and danger to the officer are further reflected in the differing statutory requirements. Where violence toward the officer is present, Section 38.03 applies, and it is no defense that the arrest was unlawful. Section 38.03(b). If a deadly weapon is used, the offense is elevated to a third degree felony. Section 38.03(d). If bodily injury results, the actor may be charged with aggravated assault under Section 22.02. Where violent force is not directed at the arresting officer, the circumstances are not exigent. The actor may be charged with evading arrest under Section 38.04. Under these circumstances, however, the arrest must be lawful.

Appellant's action in twice pulling his arm away did not constitute force against the peace officer. There being no other evidence upon which the jury could base its verdict, the conviction must be reversed and a judgment of not guilty rendered. Ground of Error No. One is sustained. This ruling eliminates the need to address Appellant's Ground of Error No. Two.

The conviction is reversed and the case is remanded for the entry of a judgment of not guilty.


Summaries of

Raymond v. State

Court of Appeals of Texas, El Paso
Jun 23, 1982
640 S.W.2d 678 (Tex. App. 1982)

holding evidence defendant simply pulled away was insufficient to show use of force against officer

Summary of this case from Yarbrough v. State

holding that merely pulling arm away from officer not sufficient force to sustain a conviction for resisting arrest

Summary of this case from Henderson v. State

holding that evidence defendant simply pulled away was insufficient to show use of force against officer

Summary of this case from Martin v. State

holding that evidence defendant simply pulled away was insufficient to show use of force against officer

Summary of this case from Evans v. State

holding that merely pulling arm away from officer not sufficient force to sustain a conviction for resisting arrest

Summary of this case from Latham v. State

concluding that merely pulling arm away from arresting officer was insufficient to support the conviction

Summary of this case from Dobbs v. State

focusing on direction in which force is employed and concluding that force must be directed toward arresting officer rather than used to get away from officer

Summary of this case from Finley v. State

focusing on direction in which force is employed and concluding that force must be directed toward arresting officer rather than used to get away from officer

Summary of this case from Finley v. State

focusing on direction in which force is employed and concluding that force must be directed toward arresting officer rather than used to get away from officer

Summary of this case from Finley v. State

In Raymond, this court held the evidence insufficient to sustain the defendant's conviction for resisting arrest where the defendant merely pulled his arm away from the arresting officer.

Summary of this case from Hopper v. State

In Raymond and Leos, both courts chose to omit the topic sentence of the paragraph they quote from the 1973 Practice Commentary to Section 38.03. TEX. PENAL CODE ANN. § 38.03 (Practice Commentary).

Summary of this case from Bryant v. State

In Raymond, the court considered whether the act of pulling one's arm out of a peace officer's grasp constituted "using force against the peace officer."

Summary of this case from Bryant v. State

In Raymond, the appellant Raymond refused to acknowledge traffic citations that the arresting officer asked Raymond to sign.

Summary of this case from Leos v. State

In Raymond v. State, 640 S.W.2d 678 (Tex.App. — El Paso 1982, pet. ref'd) upon which appellant relies, the facts demonstrate that the defendant therein merely pulled his arms away from the arresting officer twice before submitting to the arrest.

Summary of this case from Molina v. State

In Raymond the uncontroverted testimony was that the appellant pulled his arm away from the officer's grasp while he was effecting the arrest.

Summary of this case from Burke v. State
Case details for

Raymond v. State

Case Details

Full title:Larry Dean RAYMOND, Appellant, v. The STATE of Texas, Appellee

Court:Court of Appeals of Texas, El Paso

Date published: Jun 23, 1982

Citations

640 S.W.2d 678 (Tex. App. 1982)

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