Dobbs, Atha Albert

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0259-13
ATHA ALBERT DOBBS, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIRST COURT OF APPEALS
WASHINGTON COUNTY
A LCALA , J., delivered the opinion of the Court in which K ELLER, P.J., P RICE,
W OMACK, J OHNSON, K EASLER, H ERVEY, and C OCHRAN, JJ., joined. M EYERS, J., filed
a dissenting opinion.
OPINION
In his petition for discretionary review, Atha Albert Dobbs, appellant, challenges the
sufficiency of the evidence to sustain his conviction for resisting arrest with a deadly weapon.
See T EX. P ENAL C ODE § 38.03(a), (d). A jury convicted appellant of that offense after he,
during an attempt by police officers to arrest him at his home, exhibited a firearm, refused
to put the weapon down when ordered to do so, and expressed his intent to use the firearm
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to shoot himself, but never threatened to use the weapon against the officers. Because we
conclude that no rational juror could have found that appellant’s conduct constituted a use
of force against a peace officer as required by the resisting-arrest statute, we hold that the
evidence is insufficient to sustain appellant’s conviction. We reverse the judgment of the
court of appeals and render a judgment of acquittal.
I. Background
In September 2010, appellant was living with his wife, Dawn, and her two daughters
in Washington County when one of the daughters told Dawn that appellant had been sexually
abusing her for several years. Dawn and her daughters moved out of the house the following
day. Dawn contacted the police to report her daughter’s allegations, and a warrant was
issued for appellant’s arrest.
Because Dawn had indicated to police that appellant might resist arrest or attempt to
harm himself, five sheriff’s deputies were dispatched to his house to carry out the warrant.
Appellant saw the deputies approach the house through the kitchen window, and he retrieved
a loaded pistol out of his gun cabinet. The deputies surrounded the house and could see
inside through the windows. Two of the deputies went to the back of the house, two to the
side, and one officer, Deputy Kokemoor, approached the front door. From his position,
Kokemoor could see appellant walking toward the door with a gun in his hand. One officer
shouted to the others that appellant was holding a gun. The officers drew their weapons, and
Kokemoor ordered appellant to put down the gun. Appellant did not comply. Instead, he
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pointed the gun at his own temple. Although Kokemoor could not hear what appellant was
saying, it appeared to him that appellant was repeatedly mouthing the words, “I’m going to
kill myself.”
Appellant then turned around and retreated deeper into the house. Kokemoor,
believing that appellant was suicidal and not a threat to the officers, lowered his gun, pulled
out his taser, and entered the house. Upon realizing that Kokemoor had entered, appellant
began to run into the living room, where the deputy shot him with the taser. Appellant then
fell to the floor, pinning one hand beneath himself while his other hand was still holding the
gun. When appellant did not comply with Kokemoor’s instruction to put his hands behind
his back, the deputy tasered appellant a second time and then kicked the gun out of
appellant’s hand. Appellant was arrested and transported to jail.
Appellant was charged with continuous sexual abuse of a young child, aggravated
sexual assault, and resisting arrest. The resisting-arrest offense was elevated from a
misdemeanor to a third-degree felony because the State alleged that appellant had used a
deadly weapon during commission of the offense.1 At trial, the jury was unable to reach a
unanimous verdict on the continuous-sexual-abuse and aggravated-sexual-assault offenses,
and the trial court declared a mistrial with respect to those two offenses. However, the jury
1
See TEX . PENAL CODE § 38.03(d). With respect to the offense of resisting arrest, appellant
was indicted for “intentionally prevent[ing] or obstruct[ing] Kyle Kokemoor, a person the defendant
knew to be a peace officer, from effecting an arrest of the defendant, and the defendant did then and
there use a deadly weapon, to wit: a firearm, to resist, prevent, or obstruct the arrest by exhibiting
a firearm.”
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did find appellant guilty of resisting arrest with a deadly weapon, and it sentenced him to six
years in prison and assessed an $8,000 fine.
On appeal, appellant argued that the evidence was insufficient to sustain his
conviction because the State failed to prove that he “us[ed] force against” a peace officer
within the meaning of that phrase as it appears in the resisting-arrest statute. See T EX. P ENAL
C ODE § 38.03(a); Dobbs v. State, No. 01-11-01126-CR, 2013 WL 561485, at *6 (Tex.
App.—Houston [1st Dist.] Feb. 14, 2013). Specifically, appellant contended that he had
merely exhibited a firearm, and that such conduct cannot constitute a use of force against a
peace officer. The court of appeals disagreed. Regarding the element of force, the court of
appeals observed that “a person can forcefully resist an arrest without successfully making
physical contact with the officer,” and it further observed that “actions which endanger an
officer” or that threaten an officer with imminent bodily injury may constitute use of force.
Dobbs, 2013 WL 561485, at *4. With respect to the meaning of the word “against” as it is
used in the statute, the court of appeals stated that “[c]ourts have made it clear that Section
38.03 does not require action directed at or toward an officer; rather, it only requires force
exerted in opposition to the officer’s efforts at making an arrest.” Id. (citing Pumphrey v.
State, 245 S.W.3d 85, 90-91 (Tex. App.—Texarkana 2008, pet. ref’d); Hopper v. State, 86
S.W.3d 676, 679 (Tex. App.—El Paso 2002, no pet.)).
Applying those principles to the facts of appellant’s case, the court of appeals
concluded that the evidence was sufficient to support his conviction for resisting arrest. Id.
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at *5-6. It explained,
Appellant retrieved a gun in direct response to the officers’ arrival to arrest
him for the offense of sexual assault of a child. Appellant displayed the gun
as he walked toward Deputy Kokemoor. . . . Appellant refused to put the gun
down despite being instructed to do so. . . . The officers could not arrest
appellant because he would not voluntarily relinquish the gun. . . . Viewed
objectively, the evidence supports an inference that appellant’s conduct was
‘in opposition’ to the officers’ effectuating his arrest.
Id. at *5. Thus, basing its analysis on the fact that appellant’s conduct was “designed to
oppose the officer’s ability to complete the arrest,” the court concluded that “the jury could
have found that his conduct was ‘against’ the officer.” Id.
II. Evidence Is Insufficient to Sustain Appellant’s Conviction
In his sole ground for review, appellant asserts that the evidence is insufficient to
prove that he “us[ed] force against [a] peace officer” as required by the resisting-arrest
statute. See T EX. P ENAL C ODE § 38.03(a). We agree that the evidence is insufficient to
sustain the jury’s finding that appellant used force against a peace officer within the meaning
of the resisting-arrest statute. Id.
A. Standard of Review
We review the sufficiency of the evidence to establish the elements of a criminal
offense under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); see
also Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Under that standard, we
view 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 offense beyond a
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reasonable doubt. Jackson, 443 U.S. at 318-19; see also Adames v. State, 353 S.W.3d 854,
859-60 (Tex. Crim. App. 2011). Circumstantial evidence is as probative as direct evidence
in establishing the guilt of the actor, and circumstantial evidence alone may be sufficient to
establish guilt. Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013) (citing
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)).
The jury is the sole judge of credibility and weight to be attached to the testimony of
witnesses. See Jackson, 443 U.S. at 319. When the record supports conflicting inferences,
we presume that the jury resolved the conflicts in favor of the verdict, and we defer to that
determination. Id.; see also Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)
(observing that it is the fact-finder’s duty “to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts”) (quoting
Jackson, 443 U.S. at 319). 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. Hooper, 214 S.W.3d at 13.
When we interpret enactments of the Legislature, “we seek to effectuate the collective
intent or purpose of the legislators who enacted the legislation.” Boykin v. State, 818 S.W.2d
782, 785 (Tex. Crim. App. 1991) (citations omitted). We focus our analysis on the literal text
of the statute and “attempt to discern the fair, objective meaning of that text at the time of its
enactment.” Id. Where that language is clear and unambiguous, we will give effect to its
plain meaning, unless that meaning would lead to absurd consequences that the Legislature
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could not have intended. Id.
B. Resisting-Arrest Statute Requires Proof of Force Directed At or In
Opposition to Officer
Appellant’s sufficiency challenge necessarily requires us to determine what the
Legislature would have intended by its use of the phrase “using force against the peace
officer or another.” See T EX. P ENAL C ODE § 38.03(a); see also Boykin, 818 S.W.2d at 785.
The complete statutory elements of the offense of resisting arrest are that a person:
(1) “intentionally prevents or obstructs”
(2) “a person he knows is a peace officer or a person acting in a peace officer’s
presence and at his direction”
(3) “from effecting an arrest, search, or transportation of the actor or another”
(4) “by using force against the peace officer or another.”
T EX. P ENAL C ODE § 38.03(a). The offense is elevated from a Class A misdemeanor to a
third-degree felony if “the actor uses a deadly weapon to resist the arrest or search.” Id. §
38.03(d).
The terms “force” and “against” are not defined by the Penal Code, and so we
interpret those terms in accordance with their ordinary meaning. See Watson v. State, 369
S.W.3d 865, 870 (Tex. Crim. App. 2012) (“Terms not defined in a statute are to be given
their plain and ordinary meaning, and words defined in dictionaries and with meanings so
well known as to be understood by a person of ordinary intelligence are not to be considered
vague and indefinite.”). In relevant part, the meaning of the word “force” is “violence,
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compulsion, or constraint exerted upon or against a person or thing.” M ERRIAM-W EBSTER’S
C OLLEGIATE D ICTIONARY 455 (10th ed. 1996); see also W EBSTER’S N EW INTERNATIONAL
D ICTIONARY 887 (3d ed. 2002) (further defining force as “violence or such threat or display
of physical aggression toward a person as reasonably inspires fear of pain, bodily harm or
death”). The term “against” means “in opposition or hostility to”; “contrary to”; “directly
opposite”; “in the direction of and into contact with”; or “in a direction opposite to the
motion or course of.” M ERRIAM-W EBSTER’S C OLLEGIATE D ICTIONARY 21 (10th ed. 1996).
Finding the meanings of these statutory terms plain and reading them in conjunction
with the other statutory terms, we conclude that the Legislature would have understood the
phrase “using force against the peace officer or another” as meaning 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 or another. See id. at 21, 455.
The court of appeals, relying primarily on case law, interpreted the statute’s use of the
word “against” as “not requir[ing] action directed at or toward an officer; rather, it only
requires force exerted in opposition to the officer’s efforts at making an arrest.” Dobbs, 2013
WL 561485, at *4. The court of appeals further reasoned that forceful actions taken in
opposition to the officer’s overall goal of bringing about an arrest, even if not physically
directed at an officer, would fall within this definition of “against.” See id. at *4-5. But, as
noted above, the statutory language plainly requires a use of force directed “against” the
officer himself, not against his broader goal of effectuating an arrest. See T EX. P ENAL C ODE
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§ 38.03(a). The Legislature’s inclusion of the word “against” before the words “the peace
officer” signifies that it intended to require proof that a defendant not only generally used
force in the presence of the officer, but also that he specifically used force in the direction
of and/or in contact with, or in hostility or opposition to, the officer. See id. The statutory
language thus requires not merely a showing that the actor engaged in some conduct designed
to delay his arrest or to make his arrest more difficult, but rather that he have used some kind
of force in opposition to, in the direction of, or in contact with the officer himself for the
purpose of preventing an arrest. See id. Were we to interpret the phrase “against the peace
officer” as encompassing any and all force employed for the purpose of opposing the
officer’s goal of effectuating an arrest, we would effectively render that phrase superfluous
because the other statutory terms already require proof that the actor prevented or obstructed
an arrest through his use of force. See id. We are bound to give meaning to each phrase and
word within a statute. See Harris v. State, 359 S.W.3d 625, 629 (Tex. Crim. App. 2011) (We
must “presume that every word in a statute has been used for a purpose and that each word,
phrase, clause, and sentence should be given effect if reasonably possible”) (quotations
omitted); see also Nguyen v. State, 1 S.W.3d 694, 696 (Tex. Crim. App. 1999) (court “cannot
interpret a phrase within a statute in isolation”); Thomas v. State, 919 S.W.2d 427, 430 (Tex.
Crim. App. 1996) (“We always strive to give words and phrases meaning within the context
of the larger provision.”).
In support of its position that the word “against” can encompass force exerted in
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opposition to the officer’s goal of making an arrest, even if that force is not physically
directed in opposition to or in the direction of the officer himself, the court of appeals cited
Pumphrey, 245 S.W.3d at 90, and Hopper, 86 S.W.3d at 679-80. We note, however, that
those cases are consistent with requiring some showing of force that is actually directed
against the officer in the sense that it is either in opposition to the officer’s physical efforts
at making an arrest, such as a forceful pulling away from the officer, or is physically directed
at or toward the officer, such as hitting or punching the officer. See Pumphrey, 245 S.W.3d
at 89-90 (noting that Pumphrey had “pulled” and “jerked” against the officer’s restraining
efforts applied to her wrists, and concluding that, based on the record, “the fact-finder could
have concluded Pumphrey and the officer struggled for at least a few seconds”); Hopper, 86
S.W.3d at 679-80 (noting that Hopper had struck officer in chest with his fist and kicked both
officers during struggle, and noting that statute plainly encompasses force that is used “to
shake off an officer’s detaining grip” or that is used when a person “pulls his arm away in
a sufficiently violent manner and with enough force to throw the arresting officer to the
ground”). And, although the court of appeals cited Pumphrey for the proposition that Section
38.03 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 Pumphrey court’s explanation of the
law is more clearly expressed in the paragraph that immediately followed that statement:
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
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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?
Pumphrey, 245 S.W.3d at 91. Thus, in concluding 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,” the court in Pumphrey clearly indicated that there must be an act directed at
or in opposition to the officer himself and his physical efforts to make an arrest, as opposed
to some metaphorical or metaphysical opposition to his overall goal of bringing about an
arrest. See id. The Pumphrey court’s statement, viewed in the broader context of the facts
and arguments presented in that case, was merely intended to clarify that a forceful act of
pulling away from an officer would also be included within the statutory phrase “using force
against” the officer. See id.; see also T EX. P ENAL C ODE § 38.03(a).
Had the Legislature intended to permit any use of force in the presence of the officer
to constitute resisting arrest, it could have easily excluded the term “against” from the statute,
or, alternatively, it could have provided for penalties for exhibiting a deadly weapon in the
presence of an officer attempting to make an arrest. There may be good policy reasons for
the Legislature to draft such a statute, but, as long as the meaning of a statute is not
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ambiguous or the application absurd, we are bound to apply the plain language of the statute
as it is written, which in this case requires not only the use of force but also proof that the
force was used against the officer. See T EX. P ENAL C ODE § 38.03(a); see also Boykin, 818
S.W.2d at 785.
We conclude that a use of force “against” an officer must necessarily be in opposition
to, or in the direction of and/or in contact with, the officer himself, meaning the officer’s
physical person. A use of force that is against the officer’s goal of effectuating an arrest in
the sense that it is hostile to or contrary to that goal, but that is not directed at or in opposition
to the officer, is not covered by the plain terms of the statute. See T EX. P ENAL C ODE §
38.03(a); see also Boykin, 818 S.W.2d at 785.
C. No Rational Juror Could Have Found Appellant Used Force Against A
Peace Officer
Applying these principles to the facts of this case, we conclude that the evidence is
insufficient to sustain appellant’s resisting-arrest conviction. See Jackson, 443 U.S. at 318-
19. Here, the record indicates that appellant at all times either held the gun at his side or
pointed it at himself, and never at officers or anyone else. The record is devoid of any
evidence to indicate that appellant threatened to use any kind of force against the officers,
but instead shows that he threatened only to shoot himself. Kokemoor indicated in his
testimony that he did not feel threatened by appellant at any point, and no evidence in the
record suggests that appellant directed any threat to or against Kokemoor or any of the other
officers.
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It is true that appellant’s conduct in displaying the gun in the presence of officers and
refusing to put the gun down when ordered to do so could rationally be found to constitute
a use of “force” within the meaning of the statute, but without an additional showing that the
force was directed at or in opposition to the officers, he cannot reasonably be said to have
used force “against” a peace officer. Furthermore, although appellant’s refusal to put down
the gun when ordered to do so had the likely effect of delaying his arrest, that refusal cannot
reasonably be understood as constituting a use of force against the officer by virtue of its
being opposed to the officer’s goal of making an arrest. Likewise, appellant’s efforts to
manipulate the situation and intimidate officers for the purpose of delaying his arrest by
threatening to shoot himself cannot reasonably be found to constitute a use of force against
officers.
III. Conclusion
Because he did not use force “against” a peace officer within the meaning of the
resisting-arrest statute, we hold that the evidence is insufficient to sustain appellant’s
conviction. We reverse the judgment of the court of appeals and render a judgment of
acquittal.
Delivered: June 25, 2014
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