Candice Pumphrey v. State ( 2008 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-07-00076-CR
______________________________
CANDICE PUMPHREY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law
Hunt County, Texas
Trial Court No. CR0600438
Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Chief Justice Morriss
OPIN ION
Lance Sharp, a police officer with Texas A & M University at Commerce, grasped the right
wrist of Candice Pumphrey to arrest her for disorderly conduct just outside the entrance to a large
dance being held on campus.1 In response, Pumphrey "immediately started pulling away and
jerking." As Sharp kept his grasp on her wrist and attempted to move behind her to get her arms
behind her, she "refused" his efforts, "actually turning in circles" to keep Sharp from securing her
arms behind her back. Sharp also described Pumphrey's actions as "twisting and squirming, doing
everything she can to keep me from getting her hand behind her back to put her in handcuffs." Sharp
added that, when "they start twisting like that, you're going to get to the point where officer safety
is a problem. Normally in that type of situation we actually take the suspect to the ground"2 to get
control over them.
1
The whole confrontation started when Pumphrey, while waiting to enter the dance, uttered
some obscenities when told by a security guard that she could not take a camera in. Those
obscenities were directed at her boyfriend because it was cold outside, and the boyfriend refused her
request that he take the camera back to the car for her. Officer Sharp, who observed this, testified
that he told Pumphrey to watch her language and that she looked at him and said, "F*** you." Sharp
testified that he then approached her and asked her if there was a problem, to which she replied, "I'm
not f****ng talking to you." Predictably, Sharp took this poorly, told her she was under arrest,
grasped her by the wrist, and attempted to take her into custody for disorderly conduct.
2
Sharp elected not to take Pumphrey to the ground for three stated reasons: (1) they were
standing on a concrete floor, (2) Pumphrey was wearing a short skirt, and (3) going to the ground
with Pumphrey would have posed a possible officer safety issue since at the time they were
surrounded by a crowd of other young people waiting to get into the dance.
2
Pumphrey argues on appeal3 only that the evidence is factually and legally insufficient to
support her conviction. We affirm her conviction.
In reviewing the legal sufficiency of the evidence, we view all of the evidence in the light
most favorable to the verdict and determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex.
Crim. App. 2000).
In a factual sufficiency review, we review all the evidence, but do so in a neutral light and
determine whether the evidence supporting the verdict is so weak or is so outweighed by the great
weight and preponderance of the evidence that the fact-finder's verdict is clearly wrong or manifestly
unjust. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007); Marshall v. State, 210
S.W.3d 618, 625 (Tex. Crim. App. 2006); Watson v. State, 204 S.W.3d 404, 414–15 (Tex. Crim.
App. 2006); Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). In a factual sufficiency
review, we are to afford "due deference" to a fact-finder's determinations. Marshall, 210 S.W.3d at
625. Although an appellate court reviewing factual sufficiency has the ability to second-guess the
fact-finder to a limited degree, the review should still be deferential, with a high level of skepticism
about the fact-finder's verdict required before a reversal can occur. Roberts, 220 S.W.3d at 521.
3
Pumphrey was convicted by the trial court of misdemeanor resisting arrest. The court
assessed punishment at thirty days' incarceration, probated for twelve months, a fine of $250.00, and
court costs of $264.00.
3
The evidence is conflicting. Officer Sharp testified that Pumphrey clearly knew he was an
officer because of their verbal interaction after the security guard had told her she could not take her
camera into the dance and because she had seen him approaching before he grabbed her wrist. He
testified that he told her she was under arrest before grabbing her wrist and that she then began
turning in circles and pulling away from him to try to keep him from pinning her arms behind her
back.
Sergeant Jeff Hundley, the second officer to arrive, testified that he did not hear Sharp tell
Pumphrey she was under arrest, that Sharp was already attempting to cuff Pumphrey when Hundley
arrived, and that Sharp told him Pumphrey was under arrest.
David Vasquez, the boyfriend with Pumphrey at the time, testified that the first officer
grabbed her wrist, that Pumphrey did not see Sharp or know what was going on and "kind of pulled
away," that the officer said she was resisting arrest, and that Pumphrey was screaming, but not too
loudly.
Segena McGuiness, a friend of Pumphrey, testified that she remembered no curse words
being directed at the officers, that Pumphrey's back was to Sharp as he approached her, that he came
up behind her without saying anything else, that he grabbed her wrist and began twisting, and that
Pumphrey did not try to get away.
Pumphrey testified that she had cursed at her boyfriend, that, the next thing she knew, her
wrist was being twisted and she tried to pull away, that she jerked away, and that she was screaming.
4
She testified Sharp twisted her wrist until her hand almost touched her forearm, so she began to
scream and to attempt to jerk her arm away. She testified that, when she got around far enough to
see who it was, she asked Sharp what was going on and that he then responded by telling her that
she was under arrest for resisting arrest. She testified that, after the first hard jerk, she was "jerking,
but it wasn't like I was really pulling. The first initial jerk, I jerked." She also pointed out that she
made no effort to run away, push the officer, or leave the scene.
Pumphrey also testified that, when Sharp "slammed" her onto the hood of his car, he split her
lip. She also testified that she complained about her wrist and arm being hurt during her arrest and
that, after numerous complaints, she was examined by a paramedic and taken to a hospital. The
medical conclusion was that her arm was sufficiently twisted to cause a severe sprain, for which she
was given a splint for her wrist.
Pumphrey argues evidentiary insufficiency as to two elements of the State's case. First, she
argues that the evidence does not establish that she knew an officer was attempting to arrest her, only
that she turned and pulled to determine the identity of the person grasping her wrist. Second, she
claims the evidence shows that her actions were merely noncooperation and did not rise to the level
of resisting arrest.
As to Pumphrey's argument that she did not know an officer was attempting an arrest, the
proof conflicts. The officers provided testimony that showed Pumphrey knew an officer was
involved. Pumphrey and two of her witnesses testified she was not looking at the officer and thus
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did not know who had grabbed her. The testimony could have been understood either to show she
was watching the officer and was aware of his approach or that she had talked to him and then turned
her back on him and thus did not know he was approaching to grab her. The evidence supporting
the verdict is neither so weak nor so outweighed by the great weight and preponderance of the
evidence as to make the verdict clearly wrong or manifestly unjust. See id. at 524. After affording
due deference to the fact-finder's determination, we conclude legally and factually sufficient evidence
supports this aspect of the verdict. See Marshall, 210 S.W.3d at 625.
The essence of Pumphrey's second argument is that one cannot commit the offense of
resisting arrest in Texas by just pulling against an officer's effort to physically control him or her,
but only by directing force toward the officer. Though this argument finds some support from some
cases, we hold that the statute authorizes a conviction for resisting arrest when the defendant actively
pulls against4 an officer's established grasp of the defendant during an arrest attempt. We also
conclude the statute is satisfied by evidence of jerking against, turning in circles to resist, twisting
and squirming to thwart, and struggling against, an officer's efforts to arrest an individual. For that
reason, we affirm Pumphrey's conviction.
4
We need not address mere passive resistance, or simple noncooperation, where one sits with
arms crossed, crawls away, or the like. See, e.g., Sheehan v. State, 201 S.W.3d 820, 823 (Tex.
App.—Waco 2006, no pet.); Leos v. State, 880 S.W.2d 180 (Tex. App.—Corpus Christi 1994, no
pet.) (involving more than simple noncooperation). Here, we are faced with active opposition to the
officer's efforts to arrest.
6
Section 38.03 of the Texas Penal Code frames the offense of resisting arrest—as is relevant
to the current case—with a requirement that the subject use "force against" a known peace officer
and thereby obstruct the officer from effecting an arrest. See TEX . PENAL CODE ANN . § 38.03(a)
(Vernon 2003). Therefore, if the record supports a finding that Pumphrey used "force against" the
officer, we must affirm her conviction for resisting arrest.
The record reflects that Pumphrey "pulled" and "jerked" against the officer's restraining
efforts applied to her wrist and, while doing so, squirmed and twisted and turned her body in relation
to the officer to keep the officer from getting both of her arms pulled behind her. Based on the
record, the fact-finder could have concluded Pumphrey and the officer struggled for at least a few
seconds such that the officer was, for that period of time, unable to get her under control and was
considering whether he would have to physically take her to the ground to achieve the control he
deemed necessary to effect the arrest. Beyond that, we find no evidence in the record that Pumphrey
specifically directed any aggressive force toward the officer or struck him in any way.
Texas cases differ on what is required to establish a use of "force against" an officer under
Section 38.03 of the Texas Penal Code. See Thompson v. State, 987 S.W.2d 64, 64–65 (Tex. Crim.
App. 1999) (Keller, J., dissenting on denial of pet.); Gary v. State, 195 S.W.3d 339, 341 (Tex.
App.—Waco 2006, no pet.); Haliburton v. State, 80 S.W.3d 309, 312 (Tex. App.—Fort Worth 2002,
no pet.). The statute is silent on that question, requiring only that the actor use "force against" the
officer. See Sheehan, 201 S.W.3d at 823; Anderson v. State, 707 S.W.2d 267, 270 (Tex.
7
App.—Houston [1st Dist.] 1986, no pet.). Many cases have at least verbalized a distinction between
a force directed toward an officer and a force that opposes the officer's effort to arrest but which is
directed away from him or her. See, e.g., Humphreys v. State, 565 S.W.2d 59, 60 (Tex. Crim. App.
1978) (striking officer's arms away, pushing at officer, and struggling with officer is sufficient);
Sartain v. State, 228 S.W.3d 416, 425 (Tex. App.—Fort Worth 2007, pet. ref'd) (flailing arms,
striking officer, pushing against officer, struggling causing fall; sufficient); Gary, 195 S.W.3d at 341
(releasing attack dog on officer; sufficient); Torres v. State, 103 S.W.3d 623, 627 (Tex.
App.—San Antonio 2003, no pet.); Bryant v. State, 923 S.W.2d 199, 208 (Tex. App.—Waco 1996,
pet. ref'd); Mayfield v. State,758 S.W.2d 371, 374 (Tex. App.—Amarillo 1988, no pet.) (attempts
by subject to "shoulder" or "elbow" officer out of car, jerking against officer's grasp, and engaging
in "pretty violent" struggle; sufficient); Raymond v. State, 640 S.W.2d 678 (Tex. App.—El Paso
1982, pet. ref'd) (simple pulling away; insufficient).5
Some cases explicitly hold that only a force directed toward an officer can support a
conviction. See Leos, 880 S.W.2d 180;6 Raymond, 640 S.W.2d at 679. But most cases involve
actions that are clearly more than a simple pulling away from the officer's restraint. See, e.g.,
5
Some cases consider whether the officer is endangered in any way as a factor supporting
such a conviction. See Sheehan, 201 S.W.3d at 823; Gary, 195 S.W.3d at 341; Raymond, 640
S.W.2d at 679; Bryant, 923 S.W.2d at 206. But we find in Section 38.03 of the Texas Penal Code
no requirement of officer danger.
6
Leos actually involved more than a simple fleeing. There was a struggle on the ground
between Leos and multiple officers which lasted for one or two minutes. The court characterized
Leos' actions as all being directed away from the officers. See Leos, 880 S.W.2d at 184.
8
Haliburton v. State, 80 S.W.3d 309, 312–13 (Tex. App.—Fort Worth 2002, no pet.) (kicking at
officer but missing; sufficient); Luxton v. State, 941 S.W.2d 339, 340–41 (Tex. App.—Fort Worth
1997, no pet.) (pulling away, plus struggling or fighting with officers; sufficient); Mayfield, 758
S.W.2d at 373 (using elbows and shoulder to shove arresting officer out of moving car; sufficient);
Burke v. State, 692 S.W.2d 570, 571 (Tex. App.—Houston [14th Dist.] 1985, no pet.) (striking
officer's arm away; sufficient); see also Westbrook v. State, No. 14-06-00040-CR, 2007 Tex. App.
LEXIS 909, at *15–16 (Tex. App.—Houston [14th Dist.] Feb. 8, 2007, no pet.) (mem. op., not
designated for publication) (suggesting that twisting and pulling away is sufficient).
Anderson is sometimes cited7 for the proposition that merely shaking off an officer's grasp
is insufficient. 707 S.W.2d at 269–70. We note, however, that in Anderson the parties agreed to that
proposition. Id. Therefore, though the appellate court cited Raymond for that proposition, it had not
been called on to rule on that issue. Additionally, there was evidence that Anderson struck the
officer. The court affirmed Anderson's conviction.
Young v. State is sometimes cited for the proposition that merely pulling away from an officer
does not constitute resisting arrest. 622 S.W.2d 99, 100–01 (Tex. Crim. App. 1981). True, Young
pulled away from an officer, but he pulled away only after his arrest had already been completed.
Thus, it was his pulling away after having been arrested that was addressed. Plus, he actually struck
the officer. We do not understand Young as authority that simple pulling away is insufficient.
7
See Sheehan, 201 S.W.3d at 823; Campbell v. State, 128 S.W.3d 662, 671 (Tex.
App.—Waco 2003, no pet.).
9
We agree with the cases which criticize the above distinctions. See Torres v. State, 103
S.W.3d 623, 627 (Tex. App.—San Antonio 2003, no pet.); Hopper v. State, 86 S.W.3d 676, 679
(Tex. App.—El Paso 2002, no pet.); Bryant v. State, 923 S.W.2d 199, 207 (Tex. App.—Waco 1996),
pet. ref'd, 940 S.W.2d 663 (Tex. Crim. App. 1997). We agree that Section 38.03 of the Texas Penal
Code does not require action directed at or toward an officer, just force exerted in opposition to his
or her efforts at making an arrest.
The distinction between force directed toward the officer and force in opposition to, but away
from, the officer can result in almost metaphysical analyses. Must the principal motion of the
defendant be toward the officer? What if he or she moves mostly away from the officer, but some
portion of his or her body moves toward the officer, as in flailing arms? What if there is a turning
or twisting so that at least part of the body moves toward the officer? Must the actions of the
defendant actually endanger the officer? How likely must that danger be? What if the "simple"
pulling away is so forceful that it causes the officer injury or causes the officer to lose his or her
balance? Is that enough? What if the pulling away can be characterized as a struggling with the
officer? Is there a distinction between a forceful or violent pulling away and a more casual pulling
away? Can one "shake off" an officer's grip without moving toward the officer? Is that force
directed toward the officer?
All of those questions can be avoided by simple reference to the statute, which defines
"resisting" arrest by using "force against" an officer or another. The ordinary meaning of "resist"
10
does not require that the resistance be directed toward the person or force being resisted. To "resist"
is to "exert oneself so as to counteract or defeat." MERRIAM -WEBSTER 'S COLLEGIATE DICTIONARY
1060 (11th ed. 2006). Interpreting "force against" to require that force be directed toward the officer
contradicts the ordinary meaning of the word "resist." In the absence of a statutory definition to the
contrary, we believe the proper understanding of "against" in the context of "resisting arrest" allows
for the use of force in opposition to, but not necessarily directed toward, the officer who is
attempting to make an arrest. We conclude that "against," as used by Section 38.03 of the Texas
Penal Code, does not require force directed at or toward the officer, but also is met with any force
exerted in opposition to, but away from, the officer, such as a simple pulling away.
In 1975, the Texas Court of Criminal Appeals ruled that a quite forceful pulling was enough
to constitute resisting arrest, where the defendant was very large and pulled hard enough to drag two
officers to her front door. See Washington v. State, 525 S.W.2d 189, 190 (Tex. Crim. App. 1975).
We see little logical difference between Washington and the case at hand, unless the relative amount
of force exerted by the accused, the relative strength of the accused and the arresting officer,8 or the
relative danger to an officer is an important factor. None of those factors appear to us to be
contained within Section 38.03 of the Texas Penal Code.
8
Sharp stands six feet, two inches tall. A second officer, who was six feet, seven inches and
weighed 265 pounds, joined Sharp, and the two managed to pin Pumphrey's arms and handcuff her.
Pumphrey is five feet, four inches tall, and weighed 130 pounds at the time. There is no indication
she had any particular level of martial arts expertise.
11
Here, Pumphrey forcefully pulled away from the officer's restraining grasp. Therefore, her
conviction must stand. That being said, we add that, here, Pumphrey did more than merely pull away
from the officer. She jerked, she squirmed, she twisted, she turned, and she struggled, all against the
officer's efforts to physically restrain her in the process of making the arrest. Those actions also
sufficiently support the conviction.
Because legally and factually sufficient evidence supports Pumphrey's conviction, we affirm
the judgment of the trial court.
Josh R. Morriss, III
Chief Justice
Date Submitted: December 27, 2007
Date Decided: January , 2008
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