Elzie Bell v. State

IN THE
TENTH COURT OF APPEALS
No. 10-08-00386-CR
ELZIE BELL,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the County Court
Navarro County, Texas
Trial Court No. 60358
MEMORANDUM OPINION
In his sole issue, Elzie Bell challenges the legal and factual sufficiency of the
evidence supporting his conviction for the misdemeanor offense of resisting arrest. We
will affirm.
When reviewing a challenge to the legal sufficiency of the evidence to establish
the elements of a penal offense, we must determine whether, after viewing all the
evidence in the light most favorable to the verdict, any rational trier of fact could have
found the essential elements of the offense beyond a reasonable doubt. See Jackson v.
Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). Our duty is to
determine if the finding of the trier of fact is rational by viewing all of the evidence
admitted at trial in the light most favorable to the verdict. Adelman v. State, 828 S.W.2d
418, 422 (Tex. Crim. App. 1992). Any inconsistencies in the evidence are resolved in
favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).
In reviewing the sufficiency of the evidence, we should look at “events
occurring before, during and after the commission of the offense and may
rely on actions of the defendant which show an understanding and
common design to do the prohibited act.” Cordova v. State, 698 S.W.2d
107, 111 (Tex. Crim. App. 1985). Each fact need not point directly and
independently to the guilt of the appellant, as long as the cumulative force
of all the incriminating circumstances is sufficient to support the
conviction. See Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993)
(“[i]t is not necessary that every fact point directly and independently to
the defendant’s guilt; it is enough if the conclusion is warranted by the
combined and cumulative force of all the incriminating circumstances.”);
Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994); Alexander v.
State, 740 S.W.2d 749, 758 (Tex. Crim. App. 1987).
...
[C]ourts of appeals should adhere to the Jackson standard and
determine whether the necessary inferences are reasonable based upon
the combined and cumulative force of all the evidence when viewed in the
light most favorable to the verdict.
Hooper v. State, 214 S.W.3d 9, 13, 15-17 (Tex. Crim. App. 2007).
The Court of Criminal Appeals recently overruled Clewis v. State, 922 S.W.2d 126
(Tex. Crim. App. 1996) and factual-sufficiency review. See Brooks v. State, --- S.W.3d ---, -
--, 2010 WL 3894613, at *1 (Tex. Crim. App. Oct. 6, 2010). The court held that the Jackson
v. Virginia legal-sufficiency standard is the only standard a reviewing court should
apply in determining the sufficiency of the evidence. Id. We thus will not review the
Bell v. State Page 2
evidence for factual sufficiency.
Bell argues that there is no evidence the officer was attempting an arrest or that
Bell used force against the officer. A person is arrested when he has actually been
placed under restraint or taken into custody by an officer or person executing an arrest
warrant or by an officer or person arresting without a warrant. TEX. CODE CRIM. PROC.
ANN. art. 15.22 (Vernon 2007). Bell points to no authority that a person must be told he
is being placed under arrest before he can commit the offense of resisting arrest.
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[, search, or transportation of the actor] by using force against the
peace officer. TEX. PEN. CODE ANN. § 38.03(a) (Vernon 2003). We recently
wrote:
The Penal Code does not provide a definition of “using force
against” or of those terms individually. Courts have concluded that
non-cooperation with an arrest is not an act of “use of force against”
a peace officer under the resisting arrest statute, for example:
· shaking off an arresting officer’s detaining grip. Anderson v. State,
707 S.W.2d 267, 269 (Tex. App.—Houston [1st Dist.] 1986, no pet.).
· pulling away from an arresting officer after being arrested. Young
v. State, 622 S.W.2d 99, 100-01 (Tex. Crim. App. [Panel Op.] 1981).
· crawling away from an arresting officer. Leos v. State, 880 S.W.2d
180, 181 (Tex. App.—Corpus Christi 1994, no pet).
Thus, refusing to cooperate with being arrested does not
constitute resisting arrest by force. However, we have held that
evidence of non-cooperation combined with violent swings of the
body and a forward movement causing the officer and the defendant
to fall off a porch was sufficient to establish resisting arrest. Bryant v.
State, 923 S.W.2d 199, 206 (Tex. App.—Waco 1996, pet ref’d).
Campbell v. State, 128 S.W.3d 662, 671 (Tex. App.—Waco 2003, no pet.)
(emphasis added). And courts have made the distinction between actions
Bell v. State Page 3
that endanger an officer (i.e. striking an arresting officer’s arm) and those
actions in which there is no danger of injury to the officer (i.e. pulling arm
away from officer). See Raymond v. State, 640 S.W.2d 678, 679 (Tex. App.—
El Paso 1982, pet. ref’d).
Sheehan v. State, 201 S.W.3d 820, 822-23 (Tex. App.—Waco 2006, no pet.).
The evidence viewed in the light most favorable to the verdict shows that Officer
Williams instructed Bell, who appeared to be intoxicated, to put his hands behind his
back as Bell attempted to approach a man who Bell had allegedly just assaulted. When
Bell did not comply, Officer Williams grabbed Bell’s hand in an attempt to handcuff
him. Bell then tried to pull his arm away and pushed Officer Williams, who pepper-
sprayed Bell and wrestled him to the ground. Bell ignored repeated instructions to stop
resisting, and Officer Simpson and a paramedic had to physically assist Officer
Williams in subduing Bell and applying handcuffs. Thereafter, the officers had to
forcibly put Bell in the police car.
Based on this evidence, a rational juror could find, beyond a reasonable doubt,
that Bell was being arrested and used force against the officers. The evidence is legally
sufficient, and we overrule Bell’s issue.
We affirm the trial court’s judgment.
REX D. DAVIS
Justice
Bell v. State Page 4
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
(Chief Justice Gray concurs in the judgment to the extent it affirms the trial
court’s judgment only. A separate opinion will not issue.)
Affirmed
Opinion delivered and filed December 8, 2010
Do not publish
[CR25]
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