                                        COURT OF APPEALS
                                     EIGHTH DISTRICT OF TEXAS
                                          EL PASO, TEXAS

                                                       §
    ADRIAN D. SMITH,                                                     No. 08-11-00348-CR
                                                       §
                           Appellant,                                         Appeal from
                                                       §
    v.                                                              County Criminal Court No. 3
                                                       §
    THE STATE OF TEXAS,                                                of Tarrant County, Texas
                                                       §
                           Appellee.                                        (TC # 1110430)
                                                       §

                                               OPINION

         Adrian D. Smith appeals his conviction of resisting arrest. A jury found Appellant guilty

and the court assessed his punishment at a fine of $200 and 90 days in jail, probated for one year.

We affirm.

                                         FACTUAL SUMMARY

         Sean T. Nguyen, a Fort Worth police officer, was dispatched to an apartment complex in

Fort Worth because Sandy Smith, Appellant’s mother, had reported a domestic disturbance.

After arriving at the apartment, Nguyen began speaking with Ms. Smith about why she had

called, but Appellant came into the area and began interrupting the conversation to the point that

Officers Nguyen and Nash1 could not talk with Ms. Smith. Nguyen described Appellant as


1
  Another police officer, Officer Nash, responded to the call with Nguyen but Nash did not testify because he was
deployed with the military at the time of trial.
aggressive and “pretty loud and pretty vocal.” Nguyen told Appellant that they were speaking

with Ms. Smith first and then they would talk to him to get his side of the story. He also asked

Appellant to stop interfering with the officers’ conversation with Ms. Smith, but he would not

stop. Nguyen also told Appellant that it was a criminal offense for him to interfere with the

officers’ investigation, but Appellant persisted with this behavior for ten to fifteen minutes.

Finally, Nguyen told Appellant to step outside of the apartment because he was going to arrest

him for interference with public duties.     Initially, Appellant refused to cooperate but he

eventually stepped outside. Nguyen informed Appellant he was under arrest and ordered him to

put his hands behind his back. Nguyen, who was standing at Appellant’s left side, gripped

Appellant’s arm by the elbow and attempted to grasp Appellant’s hand, but Appellant pushed his

arm and hand forcefully towards Nguyen causing him to lose his grip on Appellant and step

backwards a couple of steps. Nash was standing on the right side of Appellant. When Officer

Nguyen lost control of Appellant, Officer Nash grabbed Appellant and took him to the ground.

They asked Appellant to cooperate and place his hands behind his back, but he would not do as

they asked and he kicked at them with his legs. They eventually handcuffed Appellant and took

him into custody.

       Appellant testified in his own defense. He has been enlisted in the Army since June of

2007. On the evening in question, he had been at his godmother’s house watching wrestling on

television with her. Afterward, he went to his mother’s apartment and spent some time with her.

His mother had been drinking and she became upset with him. She asked him to leave but he did

not do so. When the police arrived, he went into his mother’s bedroom but stood in the doorway.


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He “chimed in” when she was talking to the police and let them know she had been drinking. He

also told them he had not done anything wrong by refusing to leave. Appellant admitted that the

officers asked him to stop talking. After the officers talked to his mother for a while, they took

him outside and asked him what was going on. Appellant said it made the officers angry when

he answered them by simply stating he was not the person who had called them. After a moment

of silence, the officers grabbed him and wrestled him to the ground without ever telling him he

was under arrest for interference with public duties. Appellant denied putting up any kind of

resistance and said he told the officers, “I’m not resisting.” The officers cuffed him and placed

Appellant in a patrol car.

       The jury resolved the evidentiary conflicts in favor of the State and found Appellant

guilty of resisting arrest as alleged in the information. This appeal follows.

                             SUFFICIENCY OF THE EVIDENCE

       In his sole issue, Appellant challenges the legal sufficiency of the evidence supporting his

conviction because Officer Nguyen testified on cross-examination that Appellant’s use of force

was not unreasonable.

                                        Standard of Review

       In Brooks v. State, the Court of Criminal Appeals abandoned factual sufficiency review

in those cases where the burden of proof is beyond a reasonable doubt. Brooks v. State, 323

S.W.3d 893, 894-95 (Tex.Crim.App. 2010)(finding no meaningful distinction between the legal

and factual sufficiency standards and no justification for retaining both standards, therefore

overruling the factual sufficiency review adopted in Clewis v. State, 922 S.W.2d 126, 133


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(Tex.Crim.App. 1996)). The legal sufficiency standard articulated in Jackson v. Virginia, 443

U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), is the only standard a reviewing court

applies in determining whether the evidence is sufficient to support a conviction. Brooks, 323

S.W.3d at 894-95.

       Under that standard, a reviewing court views all the evidence in the light most favorable

to the prosecution to determine whether any rational trier of fact could have found the essential

elements of the offense beyond a reasonable doubt.          Wise v. State, 364 S.W.3d 900, 903

(Tex.Crim.App. 2012); Brooks, 323 S.W.3d at 894-95, citing Jackson, 443 U.S. at 319, 99 S.Ct.

at 2789. As the trier of fact, the jury is the sole judge as to the weight and credibility of witness

testimony, and therefore, on appeal we must give deference to the jury’s determinations. Brooks,

323 S.W.3d at 894-95. If the record contains conflicting inferences, we must presume the jury

resolved such facts in favor of the verdict and defer to that resolution. Id. On appeal, we serve

only to ensure the jury reached a rational verdict, and we may not reevaluate the weight and

credibility of the evidence produced at trial and in so doing substitute our judgment for that of

the fact finder. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). The sufficiency

standard is the same for both direct and circumstantial evidence. Wise, 364 S.W.3d at 903.

                                   Elements of Resisting Arrest

       A person commits 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.     See TEX.PENAL CODE ANN. § 38.03(a)(West 2011).              The

information alleged, and the jury found, that Appellant intentionally prevented or obstructed


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Officer Nguyen, a person Appellant knew to be a peace officer, from effecting an arrest or search

of Appellant, by using force against the peace officer, to-wit: by pushing the officer with his

hand.

        The Penal Code does not define the phrase “using force against” so the words must be

given their common and ordinary meaning. The Ninth Edition of Black’s Law Dictionary

defines “force” as “[p]ower, violence, or pressure directed against a person or thing.” BLACK’S

LAW DICTIONARY 717 (9th ed. 2009). In Haliburton v. State, the Fort Worth Court of Appeals

relied on an earlier version of Black’s Law Dictionary which defined “force” as “[p]ower

dynamically considered, that is, in motion or in action; constraining power, compulsion; strength

directed to an end.” Haliburton v. State, 80 S.W.3d 309, 313 (Tex.App.--Fort Worth 2002, no

pet.), quoting Black’s Law Dictionary 330 (5th ed.1983).

        Passive resistance or noncooperation does not constitute the use of force against an

officer under Section 38.03. See Sheehan v. State, 201 S.W.3d 820, 822 (Tex.App.--Waco 2006,

no pet.)(stating that passive noncooperation does not amount to using force against an officer;

the defendant’s conduct amounted to only passive noncooperation where the defendant pulled his

arms to him chest and interlocked them; the conduct posed no danger to the arresting officers and

did not constitute use of force under Section 38.03). This court has held that Section 38.03 does

not require that the defendant’s action be directed at or toward an officer; rather, it only requires

force exerted in opposition to the officer’s efforts at making an arrest. See Hopper v. State, 86

S.W.3d 676, 679 (Tex.App.--El Paso 2002, no pet.).




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                                      Review of the Evidence

       Appellant states his issue in terms of the reasonableness or unreasonableness of his use of

force against the officer, but Section 38.03 does not require the State to prove that the actor’s use

of force is unreasonable. It is no defense to prosecution for resisting arrest that the arrest was

unlawful. TEX.PENAL CODE ANN. § 38.03(b). The critical question is whether the evidence is

legally sufficient to support the jury’s determination that Appellant prevented or obstructed

Office Nguyen, a person Appellant knew to be a police officer, from effecting an arrest of

Appellant by using force against the officer. There is no dispute in this case that Appellant knew

Officer Nguyen to be a peace officer. Taken in the light most favorable to the verdict, the

evidence showed that Officer Nguyen told Appellant that he was placing him under arrest for

interference with public duties and to put his hands behind his back; Nguyen gripped Appellant’s

arm with his hand and attempted to put Appellant’s hand behind his back in order to handcuff

him, but Appellant forcefully pushed the officer away which caused him to lose his grip on

Appellant’s arm. Based on this evidence, a rational trier of fact could reasonably find beyond a

reasonable doubt that Appellant intentionally prevented or obstructed Officer Nguyen from

effecting an arrest of Appellant by using force against the officer, namely, by pushing the officer

with his hand. See Humphreys v. State, 565 S.W.2d 59, 60 (Tex.Crim.App. 1978)(striking at an

officer’s arm, pushing the officer, and struggling with the officer is sufficient use of force under

Section 38.03); Pumphrey v. State, 245 S.W.3d 85, 91-92 (Tex.App.--Texarkana 2008, pet.

ref’d)(evidence sufficient to support conviction of resisting arrest where defendant immediately

started pulling away and jerking when the officer informed her she was under arrest for


                                                -6-
disorderly conduct and defendant jerked, squirmed, twisted, turned and struggled against the

officer’s efforts to arrest her). We overrule Appellant’s sole issue and affirm the judgment of the

trial court.


June 26, 2013
                                      ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.
Antcliff, J., not participating

(Do Not Publish)




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