                                                                                    ACCEPTED
                                                                               06-14-00139-CR
                                                                     SIXTH COURT OF APPEALS
                                                                          TEXARKANA, TEXAS
                                                                          3/16/2015 2:50:11 PM
                                                                               DEBBIE AUTREY
                                                                                        CLERK

                                 In the
                       Court of Appeals for the
                 Sixth District of Texas at Texarkana          FILED IN
                                                        6th COURT OF APPEALS
                                                          TEXARKANA, TEXAS
 Donny Joe Curry,                  §                    3/16/2015 2:50:11 PM
     Appellant                     §                        DEBBIE AUTREY
                                                                Clerk
                                   §
          v.                       §         No. 06-14-00139-CR
 The State of Texas                §
     Appellee                      §

                 Trial Number CR1301508 in the
           The County Court at Law No. 1 of Hunt County
         The Honorable F. Duncan Thomas, Judge Presiding

                          STATE’S BRIEF

                                       Greg Willis
                                       County Attorney Pro Tem
                                       Hunt County, Texas


Oral argument is requested if          Claire D. Miranda
Appellant also requests argument       Special Prosecutor
                                       2100 Bloomdale Rd., Suite 200
                                       McKinney, TX 75071
                                       (972) 548-4323
                                       FAX (214) 491-4860
                                       State Bar No. 24037121
                                       cmiranda@co.collin.tx.us
                                      Table of Contents

Index of Authorities .................................................................................. ii

Statement Regarding Oral Argument ...................................................... 1

Statement of the Case ...............................................................................1

Statement of Facts..................................................................................... 1

Summary of the State’s Arguments .......................................................... 6

Argument & Authorities ...........................................................................7

Issue One ( Sufficiency of the Evidence; Resisting Arrest )....................7

                 The evidence is sufficient to sustain Appellant's
                 conviction for resisting arrest.       Appellant
                 intentionally obstructed a person he knew to be
                 a peace officer from effecting an arrest of
                 Appellant by using force against the officer.

I. Standard of Review ...............................................................................7

II. The State proved that Appellant was guilty of Resisting Arrest. ......8

        A.       Appellant used force against a peace officer who was
                 attempting to arrest him ......................................................... 8

        B.       Appellant acted with intent to obstruct his arrest ................. 9

Prayer ...................................................................................................... 14

Certificate of Service ............................................................................... 15

Certificate of Compliance ........................................................................ 15




                                                                                                           i
                                    Index of Authorities

Statutes, Codes, and Rules

Tex. Penal Code

  § 6.03(a)............................................................................................. 11

  § 38.03 ................................................................................................. 9

  § 38.03(a)............................................................................................. 8

  § 38.03(c) ............................................................................................. 8



Cases


Brooks v. State,
 323 S.W.3d 893 (Tex. Crim. App. 2010) ............................................. 7

Dobbs v. State,
 434 S.W.3d 166 (Tex. Crim. App. 2014) ........................................... 13

Hemphill v. State,
 505 S.W.2d 560 (Tex. Crim. App 1974) ............................................ 12

Jackson v. Virginia,
 443 U.S. 307 (1979) ............................................................................. 7

Montgomery v. State,
 369 S.W.3d 188 (Tex. Crim. App. 2012) ......................................... 7, 8

Pumphrey v. State,
 245 S.W.3d 85 (Tex. Crim. App. 2008) ..................................... 8, 9, 12




                                                                                                           ii
              Statement Regarding Oral Argument

     The State does not believe oral argument will assist the Court

in resolving the issues in this case. However, if oral argument is

granted to Appellant, the State requests the opportunity to respond.

                      Statement of the Case

     This is an appeal of a judgment and sentence in a criminal case

for the County Court at Law No. 1 of Hunt County, Texas. Appellant

was convicted on August 1, 2014.     Notice of Appeal was given on

August 1, 2014. The clerk’s record was filed on October 1, 2014. The

reporter’s record was filed on November 3, 2014.

     Appellant pleaded not guilty to the Class A misdemeanor

offense of Resisting Arrest to the Court. The Court found Appellant

guilty and sentenced him to 275 days confinement.

                        Statement of Facts

     On August 26, 2013, Officer Samantha Manrique of the

Commerce police department was on routine patrol on Highway 24 in

Commerce, Hunt County, Texas 9 RR 63. At approximately 4:00 pm.,

Officer Manrique observed Appellant’s car swerve to the left, nearly

striking the median and causing an accident, before heading through



                                                                       1
an intersection. 9 RR 63. Appellant’s car had a broken taillight and

a homemade paper license plate.       9 RR 63.    Due to these traffic

violations, Officer Manrique signaled for Appellant to pull over by

activating the overhead lights on her patrol car, and she performed a

traffic stop of Appellant’s car. 9 RR 64.

     When she approached the driver side window, Officer Manrique

noted Appellant also had a handmade registration sticker and

handmade paper inspection sticker that matched his “license plate”.

9 RR 67; 12 RR 39-40.        Officer Manrique asked for Appellant’s

driver’s license. 9 RR 64-65 Appellant stated he had no driver license

and no insurance. 9 RR 64-65 During her detention of Appellant,

Officer Manrique asked Appellant’s name. 9 RR 64-65 Appellant

responded that his first name was “Donny” and stated he did not wish

to give his last name as it was a family name. 9 RR 64-65. Appellant

refused to give any further identifiers. 9 RR 70-71. After speaking

with him further, Appellant handed Officer Manrique paperwork

purporting to explain why he did not need to have a driver license,

insurance, or license plate. 9 RR 66. The paperwork did not provide

any identifying information.     9 RR 70-71.     Appellant told Officer



                                                                      2
Manrique he was a sovereign citizen. 9 RR 66. Due to a concern

about sovereign citizens’ proclivity toward violent behavior, Officer

Manrique called her lieutenant for backup. 9 RR 66, 122-123.

     Officer Manrique had to give dispatch a full description of the

vehicle, as she could not identify the driver from his own statements

or his “license plate”. 9 RR 66 Lieutenant Mike Pehl and Sergeant

Steve Scott arrived on scene as backup. 9 RR 68. Manrique told

Lieutenant Pehl that Appellant identified himself as a sovereign

citizen. 9 RR 125-126. Lieutenant Pehl was aware through training

and experience that sovereign citizens believe in a totally different

form of government that derives from the law of man and the law of

the land, rather than from the constitution.          9 RR 124-125.

Lieutenant Pehl and Sargent Scott, both wearing police identification

on their clothing, approached Appellant’s car and Lieutenant Pehl

asked Appellant to identify himself.   9 RR 127.      Lieutenant Pehl

identified himself as a peace officer to Appellant.    9 RR 128. He

informed Appellant that Appellant had to identify himself to a peace

officer or he was in violation of the law. 9 RR 127-128. Appellant

refused to identify himself but told Lieutenant Pehl he wanted to



                                                                    3
show him something. 9 RR 127-129 Appellant then reached into the

top of his briefcase. 9 RR 128-129. Due to his fear about sovereign

citizens’ potential for violent behavior, Lieutenant Pehl drew his

weapon from his holster and told Appellant to show him his hands. 9

RR 128. Appellant pulled his hands from the briefcase, Lieutenant

Pehl holstered his weapon and grabbed Appellant’s arm to pull

Appellant from the car.    9 RR 128.     Lieutenant Pehl pulled on

Appellant’s arm several times but was not able to pull Appellant from

the car. 9 RR 128-129. Lieutenant Pehl asked Officer Manrique for

her Taser, which Manrique handed to him, and told Appellant he

would tase him if he did not step out of the vehicle.     9 RR 129.

Appellant continued to refuse. 9 RR 129. Lieutenant Pehl then tased

Appellant. 9 RR 129.

     Lieutenant Pehl continued trying to get Appellant out of the

car, this time from the passenger’s side, but Appellant locked his

arms on the steering wheel in resistance. 9 RR 97. Lieutenant Pehl

tased Appellant a second time, this time in his side, to try and get

Appellant compliant and was ultimately successful in pulling

Appellant bodily from the car. Once outside, Appellant continued to



                                                                    4
flail about screaming. 9 RR 69-70, 129-130. Lieutenant Pehl held

onto Appellant’s torso area and was able to secure one handcuff. 9

RR 69-70, 129-170. Sergeant Scott had to secure the other handcuff

on Appellant. 9 RR 69-70. Appellant was placed into custody at that

time. 9 RR 69-70. Lieutenant Pehl located identifying paperwork in

Appellant’s car after the arrest. 9 RR 82.




                                                                  5
Summary of the State’s Arguments


State’s Reply to Issue One

     The evidence is sufficient to sustain Appellant's conviction for

resisting arrest. Appellant intentionally obstructed Lieutenant Pehl,

a person he knew to be a peace officer from effecting an arrest of

Appellant by using force against the officer.




                                                                        6
                       Argument & Authorities

                               Issue One
                     (Sufficiency: Resisting Arrest)

      The evidence is sufficient to sustain Appellant's conviction for

resisting arrest. Appellant intentionally obstructed a person he knew

to be a peace officer from effecting his arrest by using force against

the officer.


I. Standard of review

      In a sufficiency review, the appellate court views the evidence in

the light most favorable to the prosecution and determines whether

any rational jury 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, 912 (Tex. Crim. App. 2010)

(plurality & concurring opinions). The jury is the sole judge of the

credibility of the witnesses and the weight to be given to their

testimonies, and the reviewing court must not usurp this role by

substituting its own judgment for that of the jury. Montgomery v.

State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). The duty of the

reviewing court is simply to ensure that the evidence presented



                                                                         7
supports the jury’s verdict and that the State has presented a legally

sufficient case of the offense charged. Id. When the reviewing court

is faced with contradicting inferences, the court must presume that

the jury resolved any such conflicts in favor of the verdict, even if not

explicitly stated in the record. Id.

II. The State proved that Appellant was guilty of Resisting
Arrest

      To prove resisting arrest as charged in the information, the

State had to prove that Appellant intentionally prevented or

obstructed a person he knew was a peace officer from effecting an

arrest, search, or transportation of the actor by using force against

the peace officer.” See Tex. Penal Code § 38.03(a); 9 RR 33 An offense

under this section is a Class A misdemeanor.          Tex. Penal Code

§ 38.03(c).

   A. Appellant used force against a peace officer who was

      attempting to arrest Appellant

      Appellant complains that the State evidence of resisting was

insufficient because his actions were not enough to amount to

resisting and that his interaction with officers was too brief to

encompass resisting behavior. Appellant cites to Pumphrey v. State,


                                                                        8
to support his position on both points. 245 S.W.3d 85 (Tex. Crim.

App. 2008). The holding in Pumphrey—that a person can be properly

convicted of resisting where she pulled her arm away from an officer’s

force—closely matches the facts on appeal here and supports the

State’s position that Appellant’s actions on August 26, 2013,

amounted to resisting.      Pumphrey states that the meaning of

resistance is “to exert oneself so as to counteract defeat.” Id. at 91.

Pumphrey ultimately holds that the word “against” in the context of

resisting arrest “as used by Section 38.03 of the Texas Penal Code,

does not require force directed at or toward the officer, but is also met

with any force exerted in opposition to, but away from, the officer,

such as a simple pulling away.” Id at 91. Nowhere does the court

state that the duration of the encounter is the deciding factor in a

resisting case. See id. Rather, it is a subject’s actions that dictate

resistance.

     At the very least, Appellant met the definition of resisting

instituted in Pumphrey when he obstructed Lieutenant Pehl’s

attempt to arrest him by pulling away.        As established on direct

examination:



                                                                       9
     Pehl: I opened the door of the vehicle. [Appellant] says, I
     want to show you something. He reaches down into the top
     of the briefcase. As he does, having knowledge of the
     violence and proclivity of people of -- that are sovereign
     citizens, I pull my firearm from my side, from my holster. I
     level it on him, and I tell him to show me your hands.

     Q. What does he do?

     A. He immediately pulls his hands out of the briefcase and
     holds them up like this. When he does, I holster my
     weapon, and I grab his left arm, pulling it outside of the
     open doorway of the vehicle.

     Q. Does he come out?

     A. Not initially. At this point, I pulled on him several
     times, trying to bar his arm against the vehicle to induce a
     certain amount of pain so he will not resist, that he will
     come forth with the force that I apply, and he fails to do
     so. 9 RR 128-129.

After this initial resistance, Appellant continued to obstruct

Lieutenant Pehl’s attempts to get Appellant from the car:


     Pehl: I then tell the driver that I'm going to tase him if he
     does not come out of the vehicle. He again starts to refuse
     and argue with me. I remove the cartridge from the Taser.
     I employ a drive-stun to the individual's rib cage. He
     hollers and screams but locks his right arm into the
     steering wheel, and I cannot pull him from the vehicle. 9
     RR 129-130.

Lieutenant Pehl tasered Appellant again and Sergeant Scott, who

had been attending the passenger, came to assist. Between the two of


                                                                     10
them, Lieutenant Pehl and Sergeant Scott were finally able to pull

Appellant from the car, although Appellant continued to exert force

against them:

     Pehl: I grab [Appellant] around the upper chest. His arms
     are flailing out to his side. I take him to the hood of the
     patrol car, place him on the hood of the patrol car, pull his
     arms behind his back with the assistance of Detective
     Sergeant Scott. Handcuffs are then placed on the person,
     and he's placed into a police vehicle by another officer. 9
     RR 130.


Officer Manrique and Sergeant Scott likewise testified that Appellant

continued to “flail” and” “scream” once removed from the car and that

it took the force of two officers to secure handcuffs on Appellant. 9

RR 69-70.

     The amount of time it took Appellant to resist is irrelevant.

Appellant clearly exerted force to obstruct his arrest on multiple

occasions during his interaction with Lieutenant Pehl.


  A. Appellant acted with intent to obstruct an arrest

      “A person acts intentionally, or with intent, with respect to the

nature of his conduct or to a result of his conduct when it is his

conscious objective to engage in the conduct or cause the result.” Tex.



                                                                     11
Penal Code § 6.03(a). It is well settled that intent is a question of fact

to be determined by the trier of facts from all facts and circumstances

in evidence. Hemphill v. State, 505 S.W.2d 560, 562 (Tex. Crim. App

1974) Appellant argues that the State would have to prove it was his

intent to resist arrest and that Appellant did not have a clear

indication he was about to be arrested. App. Br. 16. To the contrary,

a reasonable person in Appellant’s position should know he was about

to be arrested. At the point Appellant was tased, Lieutenant Pehl

had already asked for his name, informed him he was in violation of

the law, removed his duty weapon from his holster and leveled it at

him, grabbed his arm, and attempted to pull him from the vehicle.

Appellant further argues that it was the effects of the taser, and not

Appellant’s intentional actions, that caused him to hold onto the

steering wheel. Aside from being completely conclusory, that theory

is irrelevant where the resisting behavior both preceded and followed

the taser activity, as discussed, supra.

  The totality of the circumstances support the Court’s finding

beyond a reasonable that Appellant acted intentionally to obstruct

arrest. See Pumphrey, 245 S.W.3d at 91-92 (pulling away, squirming,



                                                                       12
twisting, and struggling sufficient to prove resisting arrest); cf Dobbs

v. State, 434 S.W.3d 166, 173 (Tex. Crim. App. 2014) (evidence

insufficient to prove resisting where Dobbs held gun to his own head

and threatened to kill himself when officers attempted to arrest him).

This issue should be overruled.




                                                                     13
                           Prayer

     The State prays that this Court will affirm Appellant’s

conviction and sentence.

                                 Greg Willis
                                 County Attorney Pro Tem
                                 Hunt County, Texas

                                    /s/ Claire D. Miranda
                                    Claire D. Miranda
                                    Special Prosecutor
                                    Asst. Criminal District Attorney
                                    2100 Bloomdale Rd., Suite 200
                                    McKinney, TX 75071
                                    State Bar No. 24037121
                                    (972) 548-4331
                                    FAX (214) 491-4860
                                    cmiranda@co.collin.tx.us




                                                                14
                        Certificate of Service

     The State has e-served counsel for Appellant, the Honorable

Jason Duff, through the eFileTexas.gov filing system and sent a

courtesy copy by e-mail to jasonaduff@gmail.com on this, the 16th day of

March 2015.

                                 /s/ Claire D. Miranda
                                 Assistant Criminal District Attorney


                     Certificate of Compliance

     This brief complies with the word limitations in Texas Rule of

Appellate Procedure 9.4(i)(2). In reliance on the word count of the

computer program used to prepare this brief, the undersigned attorney

certifies that this brief contains 2,073 words, exclusive of the sections

of the brief exempted by Rule 9.4(i)(1).

                                 /s/ Claire D. Miranda
                                 Assistant Criminal District Attorney




                                                                     15
