Chad Furch v. State ( 2002 )

                                   NUMBER 13-01-815-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI-EDINBURG

CHAD FURCH,                                                                     Appellant,

                                                   v.

THE STATE OF TEXAS,                                                          Appellee.

                            On appeal from the County Court  

                                 of Wharton County, Texas.

O P I N I O N

Before Chief Justice Valdez and Justices Dorsey and Rodriguez Opinion by Chief Justice Valdez

OPINION

Appellant, Chad Furch, was found guilty by a jury of misdemeanor resisting arrest.  The trial court sentenced appellant to six months in jail.  Through two issues appellant challenges the legal and factual sufficiency of the evidence.  We affirm.

Facts

On May 6, 2000, Deputy Scott Grosser answered a domestic disturbance call at the Furch residence.  Dana Furch made the call as a result of an altercation she had with her husband/appellant, Chad Furch.  Upon arriving at the scene Deputy Grosser observed that both Mr. and Mrs. Furch had scratches on their necks and faces.  He testified that both spouses had been drinking alcohol and both were arrested as a result of the family violence.  Deputy Grosser arrested Mrs. Furch, without incident.  When he approached Mr. Furch, advising him about the arrest, Mr. Furch walked away.  Deputy Grosser grabbed his arm to restrain him.  Mr. Furch, turned, pushed the deputy away, then ran from him.  Deputy Grosser caught up after the appellant and handcuffed him.  Based upon these events a jury convicted appellant of resisting arrest and the trial court sentenced him to six months in jail.

Analysis

Raising two issues on appeal, appellant challenges the legal and factual sufficiency of the evidence.

In reviewing a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found each element of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319 (1979); Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).  In conducting a factual sufficiency review, we determine whether a neutral review of all the evidence establishes the proof of guilt is so obviously weak as to undermine confidence in the fact finder=s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).  

A person commits the offense of resisting arrest if he intentionally prevents or obstructs a person he knows is a peace officer from effecting an arrest by using force against the peace officer.  Tex. Pen. Code Ann. ' 38.03(a) (Vernon Supp. 2002).

In challenging the sufficiency of the evidence, appellant refers this Court to our decision in Leos v. State, 880 S.W.2d 180, 184 (Tex. App.BCorpus Christi 1994, no pet.). In Leos, this Court reversed and rendered the decision of the trial court convicting appellant for resisting arrest.  Id. at 181.  This Court held that there was insufficient evidence as to the force directed at the officer to support a conviction.  Id. at 184.  In that case, Officer Landrum arrived at the defendant=s residence in response to a disturbance call and an allegation of criminal mischief.  Id. at 181.  The officer on the scene approached Mr. Leos merely to discuss these allegations. Officer Landrum knew from prior experience that the defendant carried a weapon.  Leos, 880 S.W.2d at 181.  As a result, when he approached he said, AYou are not under arrest . . . but for my safety I need to [pat] you down to make sure you have no weapons at all.@  Id.  The defendant began to allow the frisk but then turned around and pushed the officer away, saying, AI am not going to jail.@  Id.  After the push, Officer Landrum advised Mr. Leos that he was under arrest, at which point Mr. Leos fled from the officer. Id.  The officer caught up to Mr. Leos. He forced him to the ground, but he continued to struggle in the impending arrest.  Id.  Holding his hands to his stomach so that he could not be shackled, Mr. Leos tried to crawl away with his shoulders and knees to the ground.  Id.  

In Leos, we recognized that the forceful shove directed at Officer Landrum Aclearly@ fell Awithin the category of uses of force sufficiently directed toward the officer to support conviction for resisting arrest.@ Leos, at 184.  We concluded, however, that such testimony was Awholly irrelevant to the charge of resisting arrest@ because it happened prior to the officer the Officer telling Mr. Leos he was under arrest.  Id. at 182.  As such, we reviewed the evidence detailing Leos=s conduct after he was notified of the impending arrest.  Id. at 182-84.  We ultimately held that under these circumstances, trying to flee did not amount to sufficient force against an officer.  Id. at 184.

The present case is distinguishable from Leos.  At trial the following pertinent testimony was introduced during the questioning of Deputy Scott Grosser:

Q:      And can you tell the jury what happened then?

A: When I told him that he was going to be under arrest, he started walking away from me saying that he wasn=t going to jail. At that point, I reached for him. I grabbed a hold of his arm around the shirt area.  And he started attempting to twist away from me, get away.  He twisted, turned, pushed away from me and took off running across F.M. 441 back towards this house,   And I chased him over there. 

Q: How did he push away from you in particular?

A: Open handed push-away.

Q: Into you?

A: Yeah.  Like you would to do just to get somebody off of you.

Here, unlike in Leos, the push was committed after the notification of impending arrest not before.  As such, we hold that the evidence presented at trial was sufficient to show appellant resisted arrest by using force against the arresting officer.

In light of this evidence and viewing  the evidence in the light most favorable to the verdict we determine that a  rational trier of fact could have found each element of the offense beyond a reasonable doubt.  Jackson, 443 U.S. at 319; Jones, 944 S.W.24 at 647.

We further hold that the evidence establishing proof of guilt is not so obviously weak as to undermine confidence in the fact finder=s determinations. Johnson, 23 S.W.3d at 11. Accordingly, we overrule appellant=s two issues challenging the legal and factual sufficiency of the evidence presented.

We affirm the judgment of the trial court.                                       

            Rogelio Valdez                                                                                                                                                                         Chief Justice   

Do Not Publish.

Tex. R. App. P. 47.3

Opinion delivered and filed

This 12th  Day of December, 2002.