Opinion
No. 05-10-00638-CR
Opinion filed May 2, 2011. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the County Court at Law No. 4, Collin County, Texas, Trial Court Cause No. 004-88060-09.
Before Justices MOSELEY, RICHTER, and LANG-MIERS.
OPINION
The trial court found Teofila Alejandro Salgado guilty of the offense of resisting arrest and assessed punishment of a fine of $750 and confinement for one year, probated for two years. In a single issue, appellant contends the evidence is legally insufficient to support his conviction. We resolve his issue against him, modify the judgment, and affirm the trial court's judgment as modified. I. BACKGROUND An information charged appellant with intentionally preventing and obstructing Daniel Tyler, a person appellant knew to be a peace officer, from effecting appellant's arrest "by using force against said peace officer." The evidence showed that at about 11:00 p.m. on September 20, 2009, Tyler and another uniformed Plano police officer responded to a disturbance call involving appellant, his ten-year-old step-granddaughter, and her mother. Tyler's responsibility on the call was to serve as a back-up officer-to "keep the peace" among the persons involved in the disturbance and make sure the primary officer was not hurt. The primary officer and a detective investigated the girl's allegations (made to her mother) concerning a sexual assault by appellant. When Tyler arrived, appellant was sitting on his front porch. Appellant was drinking a beer, which Tyler moved out of appellant's way. According to Tyler, appellant was "agitated" and appeared to be intoxicated. Tyler explained that he was there to keep the peace and prevent any violence. Tyler testified that appellant understood he was a police officer and the reason he was there. Appellant made suggestive comments about the girl to antagonize her mother, who was in the house. Tyler said appellant's comments were "escalating the situation." Tyler said appellant also threatened and tried to intimidate him throughout the conversation; for example, appellant said he had "beat up" an officer elsewhere and would "beat up" Tyler if he saw him "out with his family." Tyler took these comments as a "veiled" threat. After Tyler had been talking with appellant for about two and one-half hours, Tyler said appellant changed his comments into the present tense-"I'm going to kick [you]"-and then shifted his body. Tyler "took it as a furtive movement" to "get up to do what he just said he was going to do." Tyler went towards appellant "to effect the arrest." Tyler told him to stand up and that he was under arrest. Tyler grabbed appellant's arm and told him again to stand up. When appellant did not stand up, Tyler pulled him out of the chair and attempted to put his arms behind his back to handcuff him. At that point, appellant "started to resist"; Tyler said appellant pulled his arm away from Tyler, bringing his arms to the center of his chest and pulling "his whole body" away. Tyler positioned his hands to initiate a wrist lock and was able to get appellant's arm "down kind of behind his back." Since appellant could not move his arm because it was behind his back, appellant "pulled his body around to kind of face [Tyler]." Tyler did not know what appellant was going to do with his free hand. Rather than have appellant "face to face" with Tyler with a free hand, Tyler put appellant in an "arm bar": Tyler straightened out appellant's arm, turned up appellant's wrist, and then "took him to the ground." Tyler said appellant did not push him, but was "doing a lot of pulling and then turned back around on [him]." Appellant "used force in his actions." Plano police officer Wes Gerig testified that he was a supervisor who arrived on the scene and was about ten feet from Tyler when he observed Tyler trying to arrest appellant. He saw Tyler grab appellant's left arm, appellant wrap his right arm underneath his body, and Tyler handcuff appellant's left wrist. Gerig tried to get appellant's right arm, but appellant resisted by "ha[ving] it curled up . . . just squeezing his muscle to keep it up underneath him." Gerig "used some force to get" appellant's right arm. Finally, Gerig held appellant's right wrist, Tyler cuffed it, and appellant did not "continue to resist." II. SUFFICIENCY OF THE EVIDENCE In his single issue, appellant contends the evidence is legally insufficient to show he used force against the officer. A. Standard of Review and Applicable Law In reviewing the sufficiency of the evidence to support a conviction, we view all evidence in the light most favorable to the judgment to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 895, 899 (Tex. Crim. App. 2010) (plurality op.). We consider all the evidence, whether properly or improperly admitted. See McDaniel v. Brown, 130 S. Ct. 665, 672 (2010) (per curiam); Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); Jackson, 443 U.S. at 319. It is the responsibility of the fact finder to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences. Jackson, 443 U.S. at 319; Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). A person commits the Class A misdemeanor offense of resisting arrest if he intentionally prevents or obstructs a person he knows is a peace office from effecting an arrest "by using force against the peace officer. . . ." Tex. Penal Code Ann. § 38.03(a), (c) (West 2003). B. Discussion Appellant argues that "not all acts that effectively obstruct a police officer from effectuating an arrest constitute the offense of `resisting arrest.'" First, appellant characterizes his acts as "pulling away" from Tyler and argues such pulling away constitutes passive non-cooperation, not "using force against" Tyler. He relies on two cases in which courts decided the appellant's conduct did not constitute using force against an officer: Sheehan v. State, 201 S.W.3d 820, 821 (Tex. App.-Waco 2006, no pet.) (appellant refused to go with officers at their request and then, when an officer reached for his left arm, stood up, pulled his hands into his chest, and leant toward a bunk bed in a "restricted area"; after one officer grabbed his right arm and another had his left hand, officers "moved him to the ground so he couldn't run away, got his arms behind his back, handcuffed him and walked him outside . . ."), and Raymond v. State, 640 S.W.2d 678, 679 (Tex. App.-El Paso 1982, pet. ref'd) (appellant twice pulled his arm away from police officer's grasp before submitting to arrest and handcuffing). However, we reject appellant's description of his conduct as passive resistance. See Pumphrey v. State, 245 S.W.3d 85, 89 n. 4 (Tex. App.-Texarkana 2008, pet. ref'd) (describing "mere passive resistance" or "simple noncooperation" as sitting with arms crossed, crawling away, or the like). Factually, appellant's conduct is similar to the struggles described in Pumphrey, id. at 87, where the appellant pulled and jerked away, "turning in circles" to keep the officer from securing her arms behind her back, and Bryant v. State, 923 S.W.2d 199, 203-06 (Tex. App.-Waco 1996), pet. denied, 940 S.W.2d 663 (Tex. Crim. App. 1997), where the appellant stiffened and jerked his right arm back on an officer's handcuff attempt, then swung his body around to face the officer, who grabbed him around the neck for better control; the appellant's swinging motion propelled them to the ground; the appellant continued to hold his right arm stiffly underneath while another officer handcuffed his left arm. Likewise, here, in addition to pulling his arm back, appellant moved his body to face Tyler and continued to stiffen his arm, requiring the officers to use force to handcuff both arms. The courts in Pumphrey and Bryant concluded the appellants' conduct constituted using force against an officer. We reach the same conclusion in this case, and we reject appellant's arguments to the contrary. Second, appellant argues the evidence shows his acts were not "directed toward" Tyler and thus did not satisfy the using force "against the peace officer" requirement of the statute. See Sheehan, 201 S.W.3d at 823 (contrasting actions "that endanger an officer" with those in which "there is no danger of injury to the officer"); Raymond, 640 S.W.2d at 679 (section 38.03 applies "[w]here violence toward the officer is present"). However, as explained in Pumphrey, 245 S.W.3d 90-91, 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." See Hopper v. State, 86 S.W.3d 676, 679 (Tex. App.-El Paso 2002, no pet.) (same). We conclude the analysis in Pumphrey and Hopper properly construes the "using force against" language of section 38.03. See Tapps v. State, 294 S.W.3d 175, 177 (Tex. Crim. App. 2009) (setting out standards of statutory construction). Thus, we follow it and reject Sheehan's and Raymond's "directional" analysis. Viewing the evidence under the proper standard, we conclude a rational trier of fact could find beyond a reasonable doubt that appellant resisted arrest. Thus, the evidence is sufficient to sustain appellant's conviction. See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 895, 899. We overrule appellant's sole point of error. III. MODIFICATION OF THE JUDGMENT In its brief, the State points out that the trial court's judgment incorrectly shows that appellant pleaded guilty, but the reporter's record shows he pleaded not guilty in a bench trial. We agree that the written judgment is incorrect. This Court has the power to modify an incorrect judgment to make the record speak the truth when we have the necessary information before us to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd) (en banc). On our own motion, we modify the trial court's judgment to show appellant entered a plea of not guilty. IV. CONCLUSION We affirm the trial court's judgment as modified.