Affirmed and Memorandum Opinion filed October 29, 2019.




                                      In The

                Fourteenth Court of Appeals
                              NO. 14-17-00923-CR

                   JUSTIN ROSS HOLZWORTH, Appellant

                                        V.
                       THE STATE OF TEXAS, Appellee

           On Appeal from the County Criminal Court at Law No. 2
                           Harris County, Texas
                       Trial Court Cause No. 2139379

                     MEMORANDUM OPINION

      Appellant Justin Ross Holzworth appeals his conviction for resisting a
search by someone he knew to be a peace officer. A jury found appellant guilty,
and the trial court sentenced him to one year in jail, suspended the sentence, and
placed him on community supervision for one year. In four issues, appellant
contends that the evidence was legally insufficient to prove that (1) appellant
resisted a search, (2) the deputy in question was engaged in a search, and (3)
appellant struck the deputy’s hand as charged, and that (4) the trial court erred in
refusing a jury instruction. We affirm.

                                           Background

      Deputy Berry’s testimony. Harris County Constable’s Deputy Glenn Berry
testified that around 11:00 p.m. on February 28, 2017, he responded to a call about
a suspicious vehicle, specifically a white truck, on a street called Spurlin Trail.1
Berry said that the neighborhood adjacent to Spurlin had experienced a lot of
vehicle break-ins. When he arrived on Spurlin, Berry observed appellant sitting in
a white truck on the side of the road. Berry made a U-turn and drove back toward
the truck.

      At that point, appellant got out of the truck and bent down to tie his shoe.
Berry said that he wanted to contact appellant to see if he needed assistance and
ask if he lived in the neighborhood. But when Berry pulled to the side of the road,
appellant started jogging away. Berry said that he became suspicious because
appellant seemed to be avoiding him and was not wearing jogging clothes but was
wearing “jeans and regular clothes.”

      Berry called twice for appellant to come talk to him, but appellant ignored
him. When Berry called a third time, louder, for appellant to come talk to him,
appellant stopped and turned and indicated that he wanted Berry to come to him to
talk. For safety reasons, Berry does not go to people in such situations but requires
them to walk to him so that he can observe them because he doesn’t know what
they may be hiding. Eventually, appellant started walking towards Berry.
Appellant seemed frustrated and said that Berry was harassing him, did not have
probable cause to make contact, and did not have the right to talk to appellant.

      Berry said he explained to appellant that it was no big deal, they had had a

      1
          We note that appellant did not file a motion to suppress evidence in this case.

                                                 2
call about a suspicious vehicle, and Berry just wanted to identify appellant and
send him on his way. Appellant took his phone out, and Berry thought that he then
started recording video of their encounter but later learned it was only an audio
recording. Berry confirmed that State’s exhibit 6 was an accurate audio recording
of the encounter.

      Berry noticed that appellant “had a lot of stuff in his pockets,” which made
Berry concerned that appellant might have a weapon. Berry testified: “I told him I
wanted to do a pat-down, just make sure he did not have weapons on him.
Basically that’s what I told him.” Berry wanted appellant to step in front of Berry’s
patrol car so that Berry could use the car’s video camera to record the process.
Berry said that when he asked appellant to step in front of the car, he touched
appellant on his back; as Berry put it: “I went through a light touch.” Appellant
then knocked Berry’s hand away. Berry told appellant that he was about to get
himself “in some trouble that he didn’t have to be in.” Berry said that he asked
appellant again to step over to the car for a pat down and again appellant knocked
his hand away. Berry then called for backup, grabbed appellant to control his arms,
and took appellant to the ground. Throughout, appellant was very vocal, claiming
harassment.

      After Berry took appellant to the ground, other officers arrived to assist.
According to Berry, appellant continued to resist “the whole time” as Berry
continued to try to pat him down to see what was in his pockets. On cross-
examination, Berry stated that no weapons were found on appellant and there was
no evidence that appellant had been selling drugs.

      Appellant’s testimony. Appellant testified that he decided to go for a jog
after watching a basketball game with his father that ended around 10:00 p.m. He



                                         3
said at the time, he was wearing white shorts, a shirt, and running shoes. 2 He said
that Spurlin Trail was about ten minutes from his home and had a long stretch of
concrete for running. After he arrived, he stayed in the truck for about ten minutes.
Shortly after Berry drove past him, appellant got out and tied his shoe. Appellant
said that he had jogged about ten to twenty feet past Berry’s patrol car when Berry
told him to come back. Appellant said that he took about ten more steps so that he
could start his phone recording. Appellant asserted that no conversation occurred
between the two of them that was not captured on the recording.

       Appellant said that Berry asked to talk and told him that they had received a
call. Appellant acknowledged that he was agitated during the encounter because he
just wanted to jog. He asked Berry for the call slip number and to speak to Berry’s
supervisor. Berry asked appellant to step toward the patrol car and tried to put his
hand on appellant’s back, but appellant moved away and said, “Don’t touch me.”
Appellant said that Berry then started “grabbing,” “pawing,” or “scratching” him.
Appellant said that he dropped a couple of feet behind Berry as they were walking
toward the car, but appellant denied knocking Berry’s hand away at any point.
Appellant testified that Berry did not say anything about a pat down or a pat down
for weapons.

       Appellant acknowledged having several things in his pockets, including a
small hard drive, car keys, and car parts. He said that after Berry said something
into his walkie-talkie, Berry grabbed appellant and threw him to the ground.
Appellant said that before Berry threw him to the ground, Berry had blocked
appellant from reaching the patrol car. Appellant denied touching Berry.

       The audio recording. The audio recording taken with appellant’s phone

       2
         Appellant’s father also testified briefly that appellant left for a jog after watching a
basketball game and that appellant usually wore running clothes when he jogged.

                                               4
was also played for the jury. The recording begins with appellant telling Berry that
he is recording their conversation and asking Berry his name. Berry responded and
told appellant, “I need you to step to my vehicle.” Appellant said, “Don’t touch
me,” and then asked, “For what reason?” Berry responded that they had received
some calls about appellant. Appellant said that he wanted the call slip number and
to speak to Berry’s supervisor. Berry said that his supervisor was on the way, and
he instructed appellant to “step to the front.” Appellant again said, “Don’t touch
me,” and repeatedly asked, “What have I done?” Berry said, “I’m not trying to
touch you, I’m trying to . . . ,” and he again told appellant to walk to the patrol car.3
Berry said, “Turn around. . . . We’re not going to go through this.” Appellant said
he was calling his father, then said he was calling his lawyer. He then repeatedly
said, “Get off me,” and repeatedly asked what he had done and said, “Do not touch
me.”

        The recording next contains sounds of a struggle along with what appears to
be the sound of one handcuff closing. Appellant said, “What are you doing?” and
Berry responded, “Turn around. Get on the ground. Put your hands behind your
back.” Other officers arrived on the scene, and at some point, appellant said, “What
probable cause?” To which, Berry replied, “I don’t need probable cause to frisk
you.”

        An officer can be heard telling appellant to drop his phone. Appellant
screams in apparent pain and says, “Let go of my hand. . . . This is illegal.” It
should be noted that at times on the recording, Berry and appellant talk over each
other. It is also easier to hear appellant on the recording, probably because he was
closer to his phone than Berry was.

        3
          It is not entirely clear from the recording whether Berry finished saying what he was
trying to do or whether he stopped because appellant was talking over him.

                                              5
                             Sufficiency of the Evidence

      Standards of review. In his first three issues, appellant challenges the
sufficiency of the evidence to support his conviction. In reviewing evidentiary
sufficiency, we consider all the evidence in the light most favorable to the verdict
and determine whether, based on that evidence and reasonable inferences
therefrom, a rational trier of fact could have found the challenged element or
elements of the crime beyond a reasonable doubt. See Whatley v. State, 445
S.W.3d 159, 166 (Tex. Crim. App. 2014); see also Jackson v. Virginia, 443 U.S.
307, 318–19 (1979). In reviewing historical facts that support conflicting
inferences, we presume that the jury resolved any conflicts in the State’s favor and
defer to that resolution. Whatley, 445 S.W.3d at 166. We do not sit as a thirteenth
juror and may not substitute our judgment for that of the factfinder by reevaluating
the weight and credibility of the evidence. Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). As judge of the credibility of the witnesses, a jury may
choose to believe all, some, or none of the testimony presented. Cain v. State, 958
S.W.2d 404, 407 n.5 (Tex. Crim. App. 1997).

      Resisting a search. Texas Penal Code section 38.03 criminalizes resisting
an arrest, a search, or transportation by a peace officer. Tex. Penal Code §
38.03(a); Crofton v. State, 541 S.W.3d 376, 379 (Tex. App.—Houston [14th Dist.]
2017, no pet.). Section 38.03(a) states in full:

      A person commits an offense if he intentionally prevents or obstructs
      a person he knows is a peace officer or a person acting in a peace
      officer’s presence and at his direction from effecting an arrest, search,
      or transportation of the actor or another by using force against the
      peace officer or another.

The section creates just one offense that can be committed in three different ways;
it does not create three separate offenses. E.g., Hartis v. State, 183 S.W.3d 793,

                                           6
797–99 (Tex. App.—Houston [14th Dist.] 2005, no pet.); Finster v. State, 152
S.W.3d 215, 218–19 (Tex. App.—Dallas 2004, no pet.). The essence of the crime
is the use of force against an officer. See Tex. Penal Code § 38.03(a); Finley v.
State, 484 S.W.3d 926, 927–28 (Tex. Crim. App. 2016); see also Pyykola v. State,
814 S.W.2d 462, 464 (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d) (“[T]here
is danger inherent in the defendant’s use of force, and the law is intended to
discourage that use of force.”). The phrase “‘using force against the peace officer
or another’ means ‘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.’” Finley, 484 S.W.3d at 928 (quoting Tex. Penal Code §
38.03(a) and Dobbs v. State, 434 S.W.3d 166, 171 (Tex. Crim. App. 2014)). It is
no defense to prosecution under the section that an arrest or search was illegal.
Tex. Penal Code § 38.03(b).

      The information in this case specifically alleged that “on or about February
28, 2017, [appellant] did then and there unlawfully intentionally prevent, G. Berry
a person he knows is a peace officer from effecting a search of [appellant] by using
force against G. Berry, namely by striking G. Berry’s arm with his hand.”
(Capitalization omitted). In his first three issues, appellant contends that the
evidence is insufficient to prove that (1) appellant intentionally resisted a search,
(2) Berry was engaged in a search at the time of the alleged resistance, and (3)
appellant struck Berry’s arm.

      Appellant resisted a search. We will discuss appellant’s first two issues
together. In his first issue, appellant focuses on the evidence of what he knew and
intended. Appellant argues that at the time he allegedly knocked Berry’s hand
away, he did not know or have notice that Berry was attempting to conduct a
search. Appellant insists that nothing on the recording indicates that he had notice

                                          7
a search was about to occur or was in the process of occurring and Berry’s putting
his hand on appellant’s back also would have provided no notice of a search. He
further adds that the jury could not have reasonably believed Berry’s testimony to
the extent it contradicted the recording. In his second issue, appellant concentrates
more fully on Officer Berry’s intentions and actions. Specifically, appellant asserts
that although Berry testified he intended to perform a search of appellant’s person
for weapons, there was no evidence that Berry was acting on that intent when
appellant allegedly knocked Berry’s hand away.

       Underpinning appellant’s arguments under his first issue is his assertion that
in order to be convicted of resisting a search, a defendant must have known or had
notice that a search was occurring and specifically intended to prevent or obstruct
the search. Appellant does not cite any cases that directly support his position, and
this is not how Texas courts typically analyze section 38.03 cases.4 The vast
majority of section 38.03 cases involve resistance to an arrest not a search, but
because resisting arrest and resisting search are simply different methods for
committing one offense, see Hartis, 183 S.W.3d at 797–99, the analysis should be
largely the same.

       We first note that in a section 38.03 prosecution, the State is not required to

       4
          Appellant cites two cases in which the defendants argued either that they personally did
not know that the officer was effecting an arrest, Munguia v. State, No. 11-16-00009-CR, 2017
WL 6803391 (Tex. App.—Eastland Dec. 29, 2017, no pet) (mem. op., not designated for
publication), or that a reasonable person would not have known that the officer was attempting to
effect an arrest, Latham v. State, 128 S.W.3d 325, 328 (Tex. App.—Tyler 2004, no pet.). In
neither case, however, did the court actually examine whether the defendant him or herself knew
that the officer was effecting an arrest. In Munguia, the defendant argued that she did not know
an arrest was occurring, but the court analyzed instead whether the officer intended to arrest her
at the time she resisted and whether the officer took some action pursuant to that intent. 2017
WL 6803391, at *3. In Latham, the court examined whether the officer was effecting an arrest,
as opposed to a detention, at the time of the alleged resistance, in part by considering whether a
reasonable person would have believed he was not free to leave. 128 S.W.3d at 329–30. Neither
case supports appellant’s position here.

                                                8
show that the officer announced his or her intention to arrest, search, or transport
the defendant. See White v. State, 601 S.W.2d 364, 366 (Tex. Crim. App. 1980);
see also Latham v. State, 128 S.W.3d 325, 329 (Tex. App.—Tyler 2004, no pet.)
(“[T]he process is not dependent upon the officer verbalizing his intention . . . .”).5
The State must show that the officer had a preexisting intent to arrest, search, or
transport, coupled with some action taken pursuant to that intent. See Munguia v.
State, No. 11-16-00009-CR, 2017 WL 6803391, at *3 (Tex. App.—Eastland Dec.
29, 2017, no pet) (mem. op., not designated for publication); Curry v. State, No.
06-14-00139-CR, 2015 WL 1869484, at *2 (Tex. App.—Texarkana Apr. 24, 2015,
no pet.) (mem. op., not designated for publication); Latham, 128 S.W.3d at 329;
Bruno v. State, 922 S.W.2d 292, 294 (Tex. App.—Amarillo 1996, no pet.). Courts
also often utilize the reasonable person standard in section 38.03 cases and ask
whether the evidence supports the conclusion that a reasonable person would have
known that an arrest, search, or transportation was in process at the time the
defendant used force against the officer. See, e.g., Curry, 2015 WL 1869484, at *2;
Latham, 128 S.W.3d at 329–30.

       Appellant’s argument under his second issue that he lacked notice of a
search can be considered a challenge to the evidence regarding the requirement that
an officer take some action pursuant to an intent to search. Specifically, appellant
asserts that although Berry testified that he intended to perform a search of
appellant’s person for weapons and explained why that was necessary, there was
no evidence that Berry had begun any action pursuant to that intent by the time

       5
         Resisting cases thereby stand in contrast to evading arrest cases in which the State must
prove that the defendant knew an officer was attempting to arrest or detain the defendant. See
Tex. Penal Code § 38.04; Smith v. State, 483 S.W.3d 648, 653 (Tex. App.—Houston [14th Dist.]
2015, no pet.) (“A person commits a crime under Section 38.04 if he knows a police officer is
attempting to arrest or detain him but nevertheless refuses to yield to a police show of
authority.”).

                                                9
appellant allegedly knocked Berry’s hand away. As appellant emphasizes, although
Berry testified that he told appellant he wanted to conduct a pat-down search to
make sure appellant did not have any weapons, at no point on the audio recording
does Berry clearly and audibly state that he intends to search appellant.6

       Berry also testified that he directed appellant to the front of his patrol car so
that the search would be captured on the car’s video, and the recording clearly
supports that Berry directed appellant to the front of the car. Berry can also be
heard on the recording telling appellant, “Turn around. . . . We’re not going to go
through this.” Berry said that around that time, he “went through a light touch” on
appellant’s back. Appellant himself described Berry’s touch alternatively as
“grabbing,” “pawing,” and “scratching.” Berry testified that it was when he “went
through a light touch” that appellant knocked his hand away for the first time.
Shortly afterwards, appellant knocked Berry’s hand away for a second time.

       The jury could have reasonably interpreted the testimony that Berry directed
appellant to the front of his car and began touching his back in a pawing or
grabbing fashion as implying Berry had begun to search appellant’s person for
weapons. In other words, viewing this evidence in the light most favorable to the
verdict, it demonstrates that Berry intended to search appellant and had taken some
action pursuant to that intent and a reasonable person in appellant’s position would
have known that a search was underway. See Whatley, 445 S.W.3d at 166; Latham,
128 S.W.3d at 329; Bruno, 922 S.W.2d at 294. Accordingly, appellant’s arguments
under his first two issues are without merit, and those issues are overruled.


       6
         It must be acknowledged, however, that some of Berry’s statements on the recording are
inaudible, largely because he and appellant talked over each other at numerous points and
appellant’s voice is louder on the recording, probably due to his proximity to the microphone.
Moreover, as stated above, there is no requirement in section 38.03 cases that the officer had to
have announced his or her intention. See White, 601 S.W.2d at 366; Latham, 128 S.W.3d at 329.

                                               10
      Variance. In his third issue, appellant contends that there is a material
variance between the allegations in the information and the proof at trial.
Specifically, appellant asserts that while the information alleged he struck Berry’s
arm, Berry testified that appellant struck his hand.

      A variance occurs when there is a discrepancy between the allegations in the
charging instrument and the proof at trial. Gollihar v. State, 46 S.W.3d 243, 246
(Tex. Crim. App. 2001). When an evidentiary sufficiency claim is based on an
alleged variance between the information and the evidence, we consider the
materiality of the variance rather than reviewing the evidence under the traditional
sufficiency standards of review. See Fuller v. State, 73 S.W.3d 250, 253 (Tex.
Crim. App. 2002). A variance only renders the evidence insufficient when it is
material. Id. A variance is material if it (1) deprived the defendant of sufficient
notice of the charges against him such that he could not prepare an adequate
defense, or (2) would subject the defendant to the risk of being prosecuted twice
for the same offense. Id. The burden of demonstrating the materiality of a variance
rests with the defendant. Santana v. State, 59 S.W.3d 187, 194 (Tex. Crim. App.
2001).

      Without offering cogent analysis, appellant asserts that the alleged variance
in this case both deprived him of notice of the charges and subjected him to the
risk of being prosecuted twice. Appellant simply posits that he could not
adequately prepare for trial and he was at risk for being charged with resisting
arrest from the same incident.

      When an alleged variance concerns non-statutory allegations, Texas courts
“tolerate ‘little mistakes’ that do not prejudice the defendant’s substantial rights but
[do] not tolerate a variance that really amounts to a failure to prove the offense
alleged[, i.e., that is] so great that the proof at trial ‘shows an entirely different

                                          11
offense’ than what was alleged in the charging instrument.” Johnson v. State, 364
S.W.3d 292, 295 (Tex. Crim. App. 2012) (quoting Byrd v. State, 336 S.W.3d 242,
247 (Tex. Crim. App. 2011)). The alleged variance in this case—charging
appellant with striking Berry’s arm instead of his hand—falls within the category
of “little mistakes.” See, e.g., Mancillas v. State, No. 04-13-00023-CR, 2014 WL
1871337, at *2 (Tex. App.—San Antonio May 7, 2014, pet. ref’d) (mem. op., not
designated for publication) (holding any variance was immaterial when indictment
alleged appellant hit complainant with his hand and testimony indicated he
elbowed her or hit her when he swung his arm back); Saenz v. State, No. 08-11-
00341-CR, 2013 WL 3946011, at *2 (Tex. App.—El Paso July 24, 2013, no pet.)
(mem. op., not designated for publication) (holding appellant failed to meet burden
of demonstrating material variance where information alleged complainant was
struck on the hand but testimony indicated she was struck on the arm). As
discussed above, the evidence was sufficient to prove the offense charged and the
proof at trial did not show an entirely different offense simply because appellant
may have hit Berry’s hand instead of his arm.

      Moreover, as noted above, appellant offers no explanation regarding how the
alleged variance between his allegedly striking Berry’s hand instead of Berry’s arm
prevented him from adequately preparing for trial. Appellant does not cite to any
place in the record, nor have we found any, where his trial counsel complained
about any such difficulty on the record. Appellant also does not suggest how the
alleged variance left him open to being prosecuted for resisting arrest in the future
based on the information used in this case. The information specified that appellant
resisted a search, and the proof at trial supported the jury’s verdict on that offense.
Accordingly, appellant has not met his burden of demonstrating that the alleged
variance was material. See Darby v. State, No. 14-14-00687-CR, 2015 WL


                                          12
6492515, at *6 (Tex. App.—Houston [14th Dist.] Oct. 27, 2015, no pet.) (mem.
op., not designated for publication) (“Merely stating he was surprised or prejudiced
by the variance is insufficient.”); Layman v. State, No. 14-08-00701-CR, 2010 WL
3292786, at *2 (Tex. App.—Houston [14th Dist.] Aug. 19, 2010, pet. ref’d) (mem.
op., not designated for publication) (holding appellant did not meet his burden
where he provided no argument that the variance prevented him from preparing a
defense or would subject him to the risk of being prosecuted twice). We therefore
overrule appellant’s third issue.

                                     Jury Instruction

      In his fourth issue, appellant contends that the trial court erred in refusing
two jury instructions that appellant requested. Specifically, appellant requested
instructions stating that neither pulling away from an officer nor verbally arguing
with an officer constituted resisting.

      A trial court is required to deliver to the jury a “written charge distinctly
setting forth the law applicable to the case.” Tex. Code Crim. Proc. art. 36.14;
Musgrove v. State, 425 S.W.3d 601, 613 (Tex. App.—Houston [14th Dist.] 2014,
pet. ref’d). The purpose of the charge is to inform the jury of the applicable law
and to guide it in applying the law to the facts of the case. Musgrove, 425 S.W.3d
at 613. A jury charge that tracks the language of a particular statute is a proper
charge on the statutory issue. Id.

      Appellant’s first requested instruction, that pulling away from an officer
cannot constitute resisting, is a misstatement of the law. In support, appellant cites
Sheehan v. State, 201 S.W.3d 820 (Tex. App.—Waco 2006, no pet.) (listing
“pulling away from an arresting officer” among actions that would not constitute
using force against an officer). However, in Finley, the Court of Criminal Appeals
subsequently specifically held that evidence the defendant was “pulling against the
                                           13
officers’ force” was sufficient to demonstrate a use of force in the resisting arrest
context. 484 S.W.3d at 928. Accordingly, the trial court did not err in denying this
requested instruction.

       The trial court also did not err in denying appellant’s second requested
instruction, that verbally arguing with an officer does not constitute resisting.7
Such language is not in section 38.03. See Musgrove, 425 S.W.3d at 613.
Moreover, as submitted, the jury charge required the jury to find that appellant
used force against Berry, namely be striking Berry with his hand. This requirement
negated the possibility that the jury might convict appellant based simply on his
verbally arguing with Berry.8 Accordingly, the trial court did not err in refusing the
requested instruction, and we overrule appellant’s fourth issue.

       Having overruled each of appellant’s issues, we affirm the trial court’s
judgment.




                                               /s/    Frances Bourliot
                                                      Justice

Panel consists of Justices Christopher, Bourliot, and Spain.
Do Not Publish — TEX. R. APP. P. 47.2(b).
       7
          In support of this proposed instruction, appellant cites only Dobbs, 434 S.W.3d 166.
Dobbs, however, does not specifically address verbal arguments but more generally explains that
the use of force required for a violation of section 38.03 must be directed “in opposition to, or in
the direction of and/or in contact with, the officer himself, meaning the officer’s physical
person. . . . [It cannot merely be] 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.” Id. at 173. Dobbs does not support an
instruction regarding verbal communication.
       8
          The jury charge did not define the word “force,” and the word has many different
definitions, but none of its definitions suggests that it could encompass verbal argument as used
in the jury charge. See Black’s Law Dictionary 760-61 (Deluxe 10th ed. 2014); The American
Heritage Dictionary 522-23 (2d College ed. 1991).

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