Timothy Earl Petty v. State ( 2015 )

ACCEPTED
06-14-00150-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
1/6/2015 1:31:33 PM
DEBBIE AUTREY
CLERK
ORAL ARGUMENT REQUESTED ONLY
IF REQUESTED BY APPELLANT
FILED IN
6th COURT OF APPEALS
No. 06-14-00150-CR TEXARKANA, TEXAS
1/8/2015 4:23:00 PM
IN THE SIXTH COURT OF APPEALS DEBBIE AUTREY
TEXARKANA, TEXAS Clerk
________________
TIM PETTY,
Appellant
v.
THE STATE OF TEXAS,
Appellee
________________
On Appeal in Cause No. CR-12-24244
From the 336THJudicial District Court
of Fannin County, Texas
__________________________________________________________________
STATE’S BRIEF
__________________________________________________________________
John B. Setterberg
State Bar No. 24043915
Assistant Criminal District Attorney
Fannin County, Texas
101 E. Sam Rayburn Dr., Ste. 301
Bonham, Texas 75418
903-583-7448
903-583-7682 (fax)
ATTORNEY FOR THE STATE
IDENTITY OF PARTIES AND COUNSEL
The State certifies that the following is a complete list of the parties,
attorneys, and other persons with interest in the outcome of this case:
(1) John B. Setterberg, Assistant Criminal District Attorney, Fannin County,
Texas, 101 East Sam Rayburn Drive, Suite 301, Bonham, Texas 75418;
ATTORNEY FOR THE STATE OF TEXAS.
(2) Micah Belden, 711 North Travis, Sherman, Texas 75090; TRIAL AND
APPELLATE ATTORNEY FOR APPELLANT.
(3) Timothy Earl Petty, TDCJ #01945203, Hutchins Unit, 1500 East Langdon
Rd., Dallas, Texas 75241; APPELLANT.
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TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ............................................................ i
TABLE OF CONTENTS .......................................................................................... ii
INDEX OF AUTHORITIES.................................................................................... iii
STATEMENT OF FACTS ........................................................................................1
SUMMARY OF THE ARGUMENT ........................................................................2
ARGUMENT .............................................................................................................3
The evidence was sufficient to show that Appellant forcefully resisted
officers as they tried to arrest him.......................................................................... 3
CONCLUSION ..........................................................................................................6
PRAYER ....................................................................................................................6
CERTIFICATE OF COMPLIANCE .........................................................................7
CERTIFICATE OF SERVICE ..................................................................................7
ii
INDEX OF AUTHORITIES
Cases
Amado v. State, 983 S.W.2d 330 (Tex. App. – Houston 1999) .............................3, 4
Dobbs v. State, 434 S.W.3d 166 (Tex. Crim. App. 2014) .....................................4, 5
Goodman v. State, 66 S.W.3d 283 (Tex. Crim. App. 2000) ......................................5
Little v. State, 376 S.W.3d 217 (Tex. App. – Fort Worth 2012) ...............................3
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) ...............................4
Rickels v. State, 202 S.W.3d 759 (Tex. Crim. App. 2009) ........................................4
Statutes
TEX. CODE CRIM. PRO. Art. 42.12 § 5(b) ...................................................................3
TEX. PENAL CODE § 38.03(a) .....................................................................................4
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No. 06-14-00150-CR
IN THE SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
________________
TIM PETTY,
Appellant
v.
THE STATE OF TEXAS,
Appellee
________________
TO THE HONORABLE JUSTICES OF THE SIXTH COURT OF APPEALS:
COMES NOW the State of Texas, by and through her assistant criminal
district attorney, and respectfully submits this brief in the above-styled and
numbered cause. This is an appeal from an adjudication of guilt following a
deferred probation; the underlying offense was aggravated assault with a deadly
weapon (Cl. R. at 44). Upon adjudicating Appellant guilty of the offense, the trial
court sentenced him to serve seven years in prison (Cl. R. at 125).
STATEMENT OF FACTS
On June 5, 2013, Appellant pled guilty and was given deferred probation for
the offense of aggravated assault with a deadly weapon (Cl. R. at 44). On March
21, 2014, the State filed a motion to adjudicate guilt alleging violations of the
Appellant’s community supervision (Cl. R. at 47). When officers from the Bonham
Police Department went to arrest the Appellant for these violations, he struggled
with and forcefully resisted their arrest. The officers testified that Appellant
forcefully pulled away from their grasp, that there was a struggle that lasted
anywhere from 20 seconds to a minute, and that it took two of them to subdue him
(Ct. R. vol. 2, at 30-32, 36-39). Moreover, one of the officers testified that during
the struggle, Appellant balled up his fist and reared back as if to strike the other
arresting officer, and that this prompted the officer to apply a choke hold and a
burst of pepper spray to the Appellant’s eyes (Ct. R. vol. 2, at 37). Additionally, a
neighbor who witnessed the event testified that the Appellant fought the officers
even after he was placed in handcuffs, and that he was able to break free by
leveling his shoulder into one of the officers and striking him in the chest or
midsection with his elbow (Ct. R. vol. 2, at 50-52). Based on this testimony, the
trial court found the allegation of resisting arrest to be true and sentenced
Appellant to seven years in the Texas Department of Criminal Justice, Institutional
Division (Ct. R. vol. 3, at 144, 170-71).
SUMMARY OF THE ARGUMENT
Appellant’s sole point of error attacks the sufficiency of the evidence to
support the State’s allegation of resisting arrest. This point fails, however, because
there was direct testimony that the Appellant forcefully resisted and acted as if he
would strike the arresting officers, as well as testimony that he physically struck or
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pushed the officers after he was initially detained. Appellant’s argument
essentially asks this court to revisit the trial court’s determinations of credibility
and weight, and to balance differing eyewitness accounts that have already been
considered and resolved by the trial court. Those are discretionary findings that rest
solely with the trier of fact, and it is this Court’s responsibility to defer to those
findings. Because the trial court chose to believe evidence supporting the State’s
allegation, and because that evidence establishes every element of the allegation,
the evidence is legally sufficient to support Appellant’s conviction, and his point
should be overruled.
ARGUMENT
The evidence was sufficient to show that Appellant forcefully resisted officers
as they tried to arrest him.
In a hearing on a motion to revoke probation or adjudicate guilt 1 the State
must prove each and every element of the grounds asserted for revocation by a
preponderance of the evidence. Amado v. State, 983 S.W.2d 330, 332 (Tex. App. –
Houston 1999, pet. ref’d). This means that the greater weight of the credible
evidence creates a reasonable belief in the mind of the fact-finder that the
defendant has violated a condition of his probation. Rickels v. State, 202 S.W.3d
1
The decision to proceed to an adjudication of guilt and revoke deferred adjudication community
supervision is reviewable in the same manner as a revocation of ordinary community
supervision. TEX. CODE CRIM. PRO. Art. 42.12 § 5(b); see also Little v. State, 376 S.W.3d 217,
219 (Tex. App. – Fort Worth 2012, pet. ref’d).
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759, 763-64 (Tex. Crim. App. 2009). The trial court acts as the sole trier of fact
and may judge the credibility and weight of the testimony. Amado, 983 S.W.2d at
332. On appeal, the court of appeal must view the evidence in the light most
favorable to the trial court’s ruling, id., meaning that a reviewing court is required
to defer to that court’s credibility and weight determinations. See Brooks v. State,
323 S.W.3d 893, 899 (Tex. Crim. App. 2010). A trial court’s ruling on a motion to
adjudicate is reviewed for an abuse of discretion, 2 and that ruling will not be
disturbed unless it is arbitrary, unreasonable, or without reference to any guiding
rules or legal principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim.
App. 1990).
As a condition of his probation, Appellant was prohibited from committing
any offense against the laws of the State of Texas (Cl. R. at 41). Under Texas law,
a person commits the offense of resisting arrest if he intentionally prevents or
obstructs a person he knows to be a peace officer from effecting an arrest, search,
or transportation of the actor by using force against the peace officer. TEX. PENAL
CODE § 38.03(a). The phrase, “using force against a peace officer,” means
“violence or physical aggression, or an immediate threat thereof, in the direction of
and/or into contact with, or in opposition or hostility to, a peace officer.” Dobbs v.
State, 434 S.W.3d 166, 171 (Tex. Crim. App. 2014).
2
Rickels, 202 S.W.3d at 763-64.
4
In this case, both officers testified that Appellant resisted and struggled with
them for several seconds as they tried to arrest him. Additionally, Cpl. Brookshire
testified that Appellant raised a fist as if to strike Officer Cunningham. This, in
and of itself, is sufficient evidence to support the conclusion that the Appellant
used “violence or physical aggression, or an immediate threat thereof,” against a
peace officer. See Dobbs, 434 S.W.3d at 171. Direct evidence of a fact is always
legally sufficient to prove that fact. Goodman v. State, 66 S.W.3d 283 (Tex. Crim.
App. 2000). Moreover, Daniel Pinion testified that he saw Appellant struggle with
and charge the officers after he was handcuffed, and that the Appellant was able to
tackle one of the officers to the ground. This too is legally sufficient to support a
finding that Appellant resisted arrest.
Appellant essentially asks this court to revisit the trial court’s findings as to
the weight and credibility of the evidence, and to resolve inconsistencies in the
testimony de novo, but this is not an appellate court’s role. Rather, the appellate
court must defer to such findings, and only disturb a lower court’s ruling for an
abuse of discretion. Because there is direct testimony that Appellant used or
threatened to use force against a peace officer to resist his arrest, the trial court did
not act unreasonably or arbitrarily in finding that allegation to be true. Thus, the
evidence is legally sufficient to support the trial court’s conclusion and Appellant’s
point of error should be overruled.
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CONCLUSION
Appellant’s sole point of error should be overruled because the evidence was
sufficient to support a rational finding that Appellant used force against known
peace officers to prevent his arrest. There was direct testimony that Appellant not
only threatened physical violence, but actually inflicted such violence in an effort
to prevent his arrest. As such, the evidence is legally sufficient to support the trial
court’s findings, and Appellant’s point of error should be overruled.
PRAYER
WHEREFORE, PREMISES CONSIDERED, there being no reversible error
in the trial of this case, the State respectfully moves this Court to overrule
Appellant’s point of error and affirm his conviction. The State further prays for
any and all such additional relief as the Court may deem just and appropriate.
Dated: January 6, 2015
Respectfully submitted,
/s/ John B. Setterberg
John B. Setterberg
State Bar No. 24043915
Assistant Criminal District Attorney
Fannin County, Texas
101 East Sam Rayburn Dr., Suite 301
Bonham, Texas 75418
903-583-7448
903-583-7682 (fax)
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CERTIFICATE OF COMPLIANCE
The undersigned hereby certifies that the foregoing document contains 1,278
words, exclusive of the portions described by TEX. R. APP. P. 9.4 (i)(1), as
computed by the computer program used to prepare the document.
/s/ John B. Setterberg
John B. Setterberg
Assistant Criminal District Attorney
Fannin County, Texas
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the
foregoing was served electronically to the individual listed below on this the 6th
day of January, 2015.
/s/ John B. Setterberg
John B. Setterberg
Assistant Criminal District Attorney
Fannin County, Texas
Micah Belden
711 North Travis
Sherman, Texas 75090
ATTORNEY FOR APPELLANT
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