No. 14-04-00441-CR
Memorandum Opinion filed August 30, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from County Court at Law, Austin County, Texas, Trial Court Cause No. 03CR23190. Affirmed.
Panel consists of Justices EDELMAN, SEYMORE, and GUZMAN.
EVA M. GUZMAN, Justice.
A jury convicted appellant Eugene Morris Hartis, Jr. of resisting arrest or transportation, and the trial court sentenced him to a probated sentence of 180 days and a $4,000 fine. Appellant challenges (1) the legal and factual sufficiency of the evidence supporting his conviction, (2) the trial court's failure to require the State to elect the method by which the offense was committed, and (3) the trial court's admission of videotape evidence of appellant's traffic stop. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Sealy Police Officer William Palmer stopped appellant Eugene Morris Hartis, Jr. for speeding in November 2002. Appellant insisted that he was not speeding and refused to sign the citation. Palmer advised appellant that if he did not sign the citation, Palmer would arrest him. Appellant replied, "[w]ell, then you do it." Palmer then asked appellant to turn around. Appellant refused and directed a barrage of profanities at Palmer, Palmer walked behind appellant, placed handcuffs on him, and then began leading appellant toward his patrol car. Although appellant struggled with Palmer, Palmer eventually placed appellant in the patrol car and transported him to the Austin County jail. Appellant was charged by information with resisting arrest, transportation, or search. A jury convicted him, and the court sentenced him to 180 days' community supervision and a $4,000 fine. This appeal followed. II. DISCUSSION
In appellant's first and second issues, he argues the evidence is legally and factually insufficient to support a conviction for resisting arrest or resisting transportation. Appellant asserts in his third issue that the trial court erred in denying his motion to force the State to elect whether it sought a conviction for resisting arrest or resisting transportation. In his fourth issue, appellant argues the trial court improperly admitted "clearly prejudicial" videotape evidence of his arrest. We begin with appellant's second issue. A. Requirement of election
The information in this case states appellant: "[D]id . . . intentionally prevent or obstruct W. PALMER, a person [appellant] knew to be a peace officer, from effecting an arrest, a search, or transportation of [appellant], by using force against said peace officer or another." This description tracks the statutory definition of the offense of resisting arrest, search, or transportation. See TEX. PEN. CODE ANN. § 38.03(a) (Vernon 2004). Appellant moved to require the State to elect the manner and means of commission of the offense, stating that because section 38.03 provides three methods in which it may be violated, the State must specify the manner by which appellant violated the statute. The trial court denied the motion. Appellant argues that the failure to require election "impacted [his] ability to prepare a defense and clearly confused the jury," and had the State specified the charge, he "could have made different motions, pretrial motions, presented different evidence and different motions for directed verdict." When the State alleges separate and distinct offenses in an indictment and the evidence shows the offenses arise from different criminal transactions, the defendant may compel the State to elect which offense or transaction it will prosecute. See Johnson v. State, 784 S.W.2d 47, 48 (Tex.Crim.App. 1990). If the State alleges a single offense in one count, election is required only where the evidence reveals two or more transactions and each transaction is an offense for which the defendant may be convicted. Crocker v. State, 573 S.W.2d 190, 198 (Tex.Crim.App. 1978). In this context, "transaction" means "a single guilty intent running through and connecting both acts." Holcomb, 696 S.W.2d at 193. The rule requiring the State to elect serves four purposes: (1) ensuring unanimous verdicts; (2) giving the defendant notice of the particular offense with which he is charged; (3) protecting the accused from the introduction of extraneous offenses; and (4) minimizing the risk that the jury may convict because the combined weight of several offenses convinced the jury the defendant was guilty. See Francis v. State, 36 S.W.3d 121, 123-25 (Tex.Crim.App. 2000); O'Neal v. State, 746 S.W.2d 769, 772-73 (Tex.Crim.App. 1988); Fisher v. State, 33 Tex. 792, 794 (1870). The videotape evidence of appellant's arrest, recorded by a camera in Palmer's patrol car and Palmer's testimony, establish that appellant's resistance began immediately after Palmer handcuffed him and continued until appellant was placed in the patrol car. Palmer testified that after being handcuffed, appellant twice attempted to pull away from his grasp, requiring Palmer to tighten his grip each time. As Palmer began walking appellant toward the patrol car, appellant pulled against Palmer with such force that Palmer was pulled up an inclined driveway and eventually lost his grip on appellant's arm. Once the two arrived at the door of the patrol car, appellant continued to pull against Palmer, forcing Palmer to "struggle" with appellant and make several attempts to unlock the car door. Palmer testified he finally gained control of appellant and place him in the car. Once inside, appellant kicked one of the rear windows out of its frame. Because appellant's resistance began when Palmer placed handcuffs on him and continued until appellant was placed in Palmer's patrol car, we conclude the evidence establishes a single criminal transaction, and therefore, the State was not required to elect whether it intended to prosecute appellant for resisting arrest or transportation. See Ponder v. State, 745 S.W.2d 372, 374 (Tex.Crim.App. 1988) (declining to require election where aggravated sexual assault and aggravated robbery arose out of the same criminal transaction); Steele v. State, 523 S.W.2d 685, 687 (Tex.Crim.App. 1975) (refusing to require election in sexual assault case where the evidence showed several instances of intercourse were committed through one continuous act of force and threats). Appellant's second issue is therefore overruled. B. Sufficiency of the Evidence
1. Standards of review When conducting a legal sufficiency review, we must determine whether, after viewing the evidence in the light most favorable to the verdict, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Moff v. State, 131 S.W.3d 485, 488 (Tex.Crim.App. 2004). During this process, we do not reevaluate the credibility of witnesses or the weight of evidence, and we will not substitute our judgment for that of the fact-finder. Johnson v. State, 967 S.W.2d 410, 412 (Tex.Crim.App. 1998). We affirm the judgment if any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App. 1997). In reviewing the evidence for factual sufficiency, we view it neutrally, setting aside the verdict only if (1) the evidence supporting the verdict, if taken alone, is too weak to sustain the finding of guilt beyond a reasonable doubt, or (2) the contrary evidence is so strong that the State could not have met its burden of proof beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). In our evaluation of the evidence, we must be deferential to the jury's findings and resist intruding on the jury's role as the sole judge of the witnesses' credibility and the weight to be given evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). 2. Application of law to facts Although appellant separates his sufficiency issues into resisting arrest and resisting transportation, we consider both together because the same conduct is involved. In order to obtain a conviction, the State was required to prove appellant intentionally prevented or obstructed Palmer, a person appellant knew was a police officer, from effecting the arrest or transportation of appellant by using force against Palmer. See TEX. PEN. CODE ANN. § 38.03(a) (Vernon 2004). An arrest is a process with a beginning and an end, the end being a successful restriction of liberty of movement by either force or submission. See Medford v. State, 13 S.W.3d 769, 773 (Tex.Crim.App. 2000). Appellant argues nothing in the record shows he resisted arrest because the (1) videotape shows him turning around and placing one hand behind his back after Palmer told him he was being arrested, and (2) Palmer stated that at that point, he was "in control of the situation." Appellant further claims he did not resist transportation because "merely pulling away" from the officer is not sufficient to resist transportation, nor did appellant "shove the officer or hit the officer or touch the officer in any way." But, the videotape shows that as Palmer led him to the patrol car, appellant attempted to twist away from Palmer's grasp, and pulled Palmer up an incline, away from the patrol car. Out of the camera's view, appellant was able to break Palmer's grasp and "pull [Palmer] off [his] feet." Further, as Palmer attempted to place appellant in the patrol car, appellant repeatedly pulled Palmer away from the door's lock, causing Palmer to have to "struggle" to unlock the door. Palmer's testimony and the videotape evidence show that appellant used force against Palmer, beginning when Palmer first handcuffed appellant and ending when Palmer placed appellant in his patrol car. Viewing this evidence in the light most favorable to the verdict, we conclude a reasonable juror could have found appellant resisted arrest or transportation beyond a reasonable doubt. See Moff, 131 S.W.3d at 488. The evidence shows appellant intentionally obstructed Palmer, a person appellant knew to be a peace officer, from effectuating appellant's arrest or transportation by using force against Palmer. See TEX. PEN. CODE ANN. 38.03(a) (Vernon 2004). Further, when the evidence is cast in a neutral light, we are not convinced the evidence supporting conviction, taken alone, is too weak to sustain the jury's finding of guilt beyond a reasonable doubt, nor is the contrary evidence so strong that the State could not have met its burden of proof beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484-85. Accordingly, we overrule appellant's sufficiency of the evidence issues. C. Admission of Videotape Evidence
In his fourth issue, appellant argues the trial court erred when it failed to exclude the videotape of his arrest because it was clearly prejudicial. Appellant claims that by admitting the portions of the videotape showing appellant cursing and insulting Palmer, "[t]he trial was no longer about fact finding, it was a referendum on free speech and how things would be tolerated in Austin county." In response, the State argues the videotape was properly admitted because it places the incident in the proper context for the jury. We review a trial court's decision to admit evidence under an abuse of discretion standard and will affirm that decision unless the record reflects a clear abuse of that discretion, such as when the trial court's decision is outside the zone of reasonable disagreement. Apolinar v. State, 155 S.W.3d 184, 186 (Tex.Crim.App. 2005). Id. A photograph is inadmissible under Rule of Evidence 403 if it is substantially more prejudicial than probative. Tex. R. Evid. 403; Erazo v. State, 144 S.W.3d 487, 488 (Tex.Crim.App. 2004). Videotapes are treated as photographs for evidentiary purposes. TEX. R. EVID. 1001(2). Generally, photographs are admissible if verbal testimony regarding the matters shown in the photographs would be admissible and the probative value of the photographs is not substantially outweighed by their prejudicial effect. Threadgill v. State, 146 S.W.3d 654, 671 (Tex.Crim.App. 2004). The videotape in this case shows the entire traffic stop from beginning to end. While the videotape depicts appellant's harsh language toward Palmer, it also shows the escalating degree of force appellant used in pulling against Palmer as Palmer led him to the patrol car. Palmer testified that appellant was belligerent and that appellant continually cursed, yelled, and screamed at Palmer. He further stated appellant repeatedly pulled against him, and was able to break his grasp. Appellant did not object to any of this testimony by Palmer. Although appellant claims that the prosecutor compounded the error by "argu[ing] over and over" during closing arguments that Palmer received a great deal of verbal abuse from appellant, appellant likewise did not object to any of the prosecutor's comments. Viewing the entire videotape and Palmer's testimony, we cannot say the probative value of the videotape is substantially outweighed by its prejudicial effect. See TEX. R. EVID. 403. The videotape was helpful to the jury because it placed Palmer's testimony about appellant's increasing use of force against him in the proper context. Also, Palmer testified without objection to a similar course of events and some of the dialogue contained in the videotape. We conclude the trial court's decision to admit the videotape was within the zone of reasonable disagreement, and therefore overrule this issue. See Apolinar, 155 S.W.3d at 186. For the foregoing reasons, we affirm the judgment of the trial court.