                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS

                                                 §
 ALYSHA SMITH
 AKA: ALICIA SMITH,                              §               No. 08-10-00146-CR

                   Appellant,                    §                  Appeal from the

 V.                                              §          County Criminal Court No. Two

 THE STATE OF TEXAS,                             §             of El Paso County, Texas

                   Appellee.                      §              (TC# 20090C08138)

                                                  §

                                           OPINION

       Appellant appeals her conviction for the offense of resisting arrest. On appeal, Appellant

complains there is insufficient evidence to support her conviction, and that the trial court erred in

refusing to grant her motion for directed verdict on the grounds that the evidence is legally

insufficient. We affirm.

       On July 7, 2009, Deputies Joel Padilla and Cesar Paredes were conducting traffic control

at the scene of a motor vehicle accident when they saw Appellant’s vehicle pass by their location.

As Deputy Padilla “[waved] the vehicles through,” Appellant’s vehicle caught his attention

because it slowed down, and Appellant rolled down her window, despite the deputy’s demand for

her to keep going. After Appellant’s vehicle departed the site, the two deputies continued to

conduct traffic control, and while waiting for a wrecker to pick up the vehicle involved in the

accident, they received another dispatch call, which indicated that there was a stalled vehicle at

the 400 block of East Vinton. When Deputy Padilla arrived at East Vinton, he observed

Appellant’s vehicle in the middle of the road, “off to its side.” Upon arriving at the East Vinton
scene, the fire officer on site related to Deputy Padilla what he had observed, and then Deputy

Padilla approached Appellant’s vehicle from the driver’s side, whereas Deputy Paredes

approached the passenger’s side. When Deputy Padilla asked Appellant what was wrong, she

answered that her boyfriend had grabbed the vehicle’s wheel, and had removed the keys from the

vehicle’s ignition. Once Deputies Padilla and Paredes began talking to Appellant, they noticed a

strong odor of alcohol emitting from her breath and person, that Appellant’s speech was slurred,

and that she had red, bloodshot eyes. Based on Appellant’s statement, the deputies identified the

passenger inside her vehicle as her boyfriend, who was highly intoxicated, had vomited all over

himself, and was passed out. Upon asking Appellant whether she had been drinking, she replied,

“yes,” and then the deputy asked her to step outside of her vehicle. As she exited the vehicle, she

was not able to maintain her balance, and almost fell down, so Deputy Padilla had to grab her

upper right arm to steady her. Deputy Padilla then escorted Appellant to the rear of her vehicle,

and he observed Appellant stagger as she walked to the back of it. When Appellant reached the

back of the vehicle, Deputy Padilla asked her to put her hands on the trunk, and informed her that

she was being arrested for driving while intoxicated. After Deputy Padilla placed handcuffs on

Appellant and started escorting her to his patrol unit, Appellant began using force to pull away

from him, and became belligerent and aggressive towards him. Several officers helped Deputy

Padilla place Appellant inside his patrol unit, but Appellant continued to resist. Appellant yelled

profanities at the officers, and attempted to kick, bite, and spit at them. While inside the patrol

unit, Appellant kicked the doors and windows, and so the officers decided to take her out for fear

that she would hurt herself or damage the unit. The officers eventually carried Appellant to the

nearest police station because she refused to walk on her own, and they placed Appellant inside a


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holding cell there.

       The information charged Appellant with the Class A misdemeanor offense of “RESIST

ARREST SEARCH OR TRANSPORT,” and stated that “ON OR ABOUT THE 7TH DAY OF

JULY, 2009 . . . DEFENDANT, DID THEN, AND THERE, INTENTIONALLY AND

KNOWINGLY PREVENT OR OBSTRUCT JOEL PADILLA, A PERSON THE DEFENDANT

KNEW TO BE A PEACE OFFICER, FROM EFFECTING THE ARREST OF THE

DEFENDANT, BY USING FORCE AGAINST SAID PEACE OFFICER, TO WIT: KICKING

JOEL PADILLA.” At the conclusion of trial, the jury convicted Appellant of the charged

offense, and assessed her punishment at imprisonment in the County Jail for a period of thirty

days, probated for two years, and a fine of $250. Appellant subsequently appealed the judgment

and sentence.

       In Issue One, Appellant argues the evidence is legally insufficient to support her

conviction for resisting arrest. In Issue Two, Appellant argues the evidence is factually

insufficient to support her conviction for resisting arrest. However, since Appellant’s brief was

filed, the Texas Court of Criminal Appeals has ruled that the only standard applicable to

determine whether the evidence is sufficient to support each element of a criminal offense is the

Jackson v. Virginia legal sufficiency standard. See Brooks v. State, 323 S.W.3d 893, 895

(Tex.Crim.App. 2010)(holding that “the Jackson v. Virginia legal-sufficiency standard is the only

standard that a reviewing court should apply in determining whether the evidence is sufficient to

support each element of a criminal offense . . . .”). Therefore, in the interests of justice, and in

light of the Brooks decision, we will construe Issue Two as a challenge to the legal sufficiency of

the evidence. See id. In Issue Three, Appellant argues the trial court erred in denying her motion


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for instructed verdict on the grounds that the evidence is legally insufficient to support her

conviction for resisting arrest. Appellant’s third issue is in reality a challenge to the legal

sufficiency of the evidence supporting her conviction, and so we will apply the standard of

review applicable to a legal sufficiency challenge. See Hopper v. State, 86 S.W.3d 676, 678

(Tex.App.--El Paso 2002, no pet.). Because all three issues Appellant raises are based on a legal

sufficiency analysis, we will address all of the issues together.

       A legal sufficiency review requires the appellate court to determine whether,

“[c]onsidering all of the evidence in the light most favorable to the verdict, was a jury rationally

justified in finding guilt beyond a reasonable doubt.” Id. at 899, citing Jackson v. Virginia, 443

U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). In conducting this review, we must

defer to the jury’s role as the sole judge of the credibility and weight that testimony is to be

afforded. Id. at 899.

       On appeal, Appellant argues that her arrest had already been effected at the time she used

force against Deputy Padilla, and so the evidence is legally insufficient to support her conviction

for the offense of resisting arrest. Appellant repeatedly points to testimony from trial in showing

that she was not resisting arrest, but resisting transportation instead. She emphasizes that the

charging instrument in this case stated that she was resisting arrest, not resisting transportation.1


       1
          In her reply brief, Appellant reiterates that it was not until after she had been placed
under arrest, was handcuffed, read her Miranda rights, and had already begun walking to Deputy
Padilla’s patrol unit that she began resisting. As such, she argues she was only resisting
transportation, and not resisting arrest. According to Appellant, “all [her] kicking occurred after
she was taken out of the patrol car.” Appellant argues that the trial testimony indicated she did
not resist transportation until she was placed in the patrol unit, and then taken out and resisted
returning to the unit or otherwise cooperate. “It seems that [Appellant] was placed in the car and
then removed from the car and began acting up and it was after the arrest had been completed
that she then began resisting transportation.”

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       A person commits an offense if she intentionally prevents or obstructs a person she

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. TEX .PEN .CODE ANN . § 38.03(a)(West 2011). In supporting her

argument, Appellant directs us to In re M.C.L. for the proposition that “[a] conviction for

resisting an arrest requires the obstruction or resistance to occur after the arrest begins but before

it ends.” 110 S.W.3d 591, 596 (Tex.App.--Austin 2003, no pet.). The Austin court, citing

Medford v. State, 13 S.W.3d 769, 773 (Tex.Crim.App. 2000), noted that a completed arrest

occurs when:

       (1) a person’s liberty of movement is successfully restricted or restrained, whether
       by physical force or the suspect’s submission to authority, and (2) a reasonable
       person in the suspect’s position would have understood the situation to constitute
       a restraint on freedom of movement to the degree that the law associates with
       formal arrest.

Id. at 596. Whether or not an arrest has occurred is determined on a case-by-case basis. Id.

There is no “bright-line” test for determining when an arrest has occurred. Rhodes v. State, 945

S.W.2d 115, 118 (Tex.Crim.App. 1997).

       The essential inquiry in a resisting arrest case is whether the actor had forcibly interfered

with a peace officer’s arrest transaction or process to bring an actor under the officer’s control.

Latham v. State, 128 S.W.3d 325, 329 (Tex.App.--Tyler 2004, no pet.). The Latham court went

on to state that the moment the officer begins his efforts to gain control or physical restraint over

an individual until that individual is restrained or controlled, the officer can be considered

effecting an arrest. Latham, 128 S.W.3d at 329.

       In Lewis v. State, our sister court held that the evidence in that case was legally sufficient


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to support the defendant’s conviction for resisting arrest where the defendant initiated struggle

immediately after being handcuffed. Lewis v. State, 30 S.W.3d 510, 513-14 (Tex.App.--Amarillo

2000, no pet.). In Lewis, officers handcuffed the defendant after he made profane remarks

toward them, and after he was handcuffed, the defendant began to pull away and struggle,

causing him and an officer to fall to the ground. Id. at 511. The officer struck his head and

suffered a minor bump as a result. Id. at 511. Another officer instructed the defendant to desist

at that point; defendant complied, and he was led to a patrol unit without further incident. Id. at

511. The defendant was subsequently charged, tried, and convicted of resisting arrest. Id. at 511.

The Amarillo court agreed with this conviction, reasoning: “[S]ince ‘common sense and

ordinary human experience must govern over rigid criteria’ in assessing the questions of search

and arrest, Rhodes v. State, 945 S.W.2d at 118, then holding that the mere placing of cuffs on

someone completes an arrest is the type of ‘bright-line’ test which we must eschew.” Lewis, 30

S.W.3d at 514. The court concluded that in this particular case, there was some evidence to

support the defendant’s conviction for resisting arrest because the defendant’s struggle occurred

in quick succession after the cuffs were placed on him, and the arrest was not complete, and the

officers did not gain control of him until he ceased struggling. Id. at 513-14.

       In contrast to Lewis, M.C.L. involved a defendant whose struggle with the officers “did

not immediately coincide with the placing of handcuffs” on him. 110 S.W.3d at 597. After the

officers handcuffed M.C.L., he sat on the couch in handcuffs for about fifteen minutes while the

officers searched the premises for his brother, and then the officers removed M.C.L. to the police

car, where he waited for another ten or fifteen minutes while the officers went back to the house

and continued searching. M.C.L., 110 S.W.3d at 593. While in the police car, M.C.L. managed


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to move his handcuffed hands from behind his back to the front of his body, and so the officers

placed leg shackles on M.C.L. Id. at 593. Subsequently, M.C.L. stood up, and believing he was

trying to escape, the officers engaged in a struggle with him. Id. at 593. The M.C.L. court

explained:

        While the struggle may have followed immediately on the heels of M.C.L. being
        shackled, it is clear that the officers had actually restrained and controlled M.C.L.
        well before he was placed in shackles. According to the record, M.C.L.
        voluntarily submitted to the officers’ authority, first by submitting to being placed
        in handcuffs and sitting on the couch while the officers searched his house, then
        by cooperatively moving to the police car and remaining there for at least ten
        minutes while cuffed, and finally by submitting to being placed in shackles. The
        arrest was complete, at the earliest, when M.C.L. was handcuffed and placed on
        his couch, and at the latest when he was moved to the police car where he
        remained for at least ten minutes, still handcuffed.

Id. at 597.

        As such, the Austin court concluded the evidence in that case was legally insufficient to

support the defendant’s conviction for resisting arrest. Id. at 597.

        The facts in this instant case are much more akin to those in Lewis than M.C.L. Viewing

the evidence in the light most favorable to the verdict in this case, we find some evidence upon

which a rational jury could have held that Appellant was not “successfully” restricted or

restrained until the officers placed her in the jail cell, particularly in view of the immediacy in

which Appellant’s exertion of force followed the placing of cuffs on her. After Deputy Padilla

placed handcuffs on Appellant and attempted to escort her to his patrol unit, Appellant started

resisting, and tried to “get away from [him].” Deputy Padilla testified that Appellant used force

to pull herself away from him, and as they approached his unit, she became belligerent and

aggressive towards him, telling him: “Fuck you, pig, fuck off.” Three other officers came to



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Deputy Padilla’s aid, and all of them requested Appellant to enter the deputy’s unit, but

Appellant instead grabbed one of the officer’s radios, and broke off its antenna. At some point,

Appellant struck Deputy Padilla on his foot with her own feet, and attempted to kick at and spit

at all the officers. Once the officers succeeded in placing Appellant inside the back of the patrol

unit, she began screaming and kicking the windows and doors of the unit with her feet, and so

they had to take her out because they were afraid that she was going to hurt herself, or cause

damage to the unit. As a result of her conduct, the officers had to place additional restraints on

Appellant in the form of leg shackles and a spit mask. After taking Appellant out of the unit, the

officers carried her to the nearest police station because she refused to walk on her own, and

during the walk to the station, Appellant continued to resist, attempting to bite the officers and

get away from them.

       The evidence indicates that the officers were still attempting to gain control and physical

restraint over Appellant as she attempted to prevent them from removing her from the site of the

incident. It is clear that the officers lacked complete control over Appellant, and that Appellant’s

resisting by pulling away, using aggression and verbal insults, was an attempt to prevent her

transport to jail. Therefore, we hold Appellant’s resisting was in the scope of the arrest

transaction, and not simply resisting transportation, as Appellant would have us conclude. See

Lewis, 30 S.W.3d at 513-14. The record establishes that Appellant’s arrest was not complete,

and the officers did not gain control of Appellant until she was placed in the holding cell at the

Vinton station. As such, viewing the evidence in the light most favorable to the verdict, we

conclude that the evidence is legally sufficient to support the conviction. See Pumphrey v. State,

245 S.W.3d 85, 89 (Tex.App.-- Texarkana 2008, pet. ref’d)(holding evidence was legally


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sufficient to support conviction for misdemeanor resisting arrest where defendant actively pulled

against officer’s restraining grasp). We also hold that the trial court did not err in denying

Appellant’s motion for directed verdict. All of Appellant’s issues are overruled.

       The trial court certified Appellant’s right to appeal in this case, but the certification does

not bear Appellant’s signature indicating that she was informed of her rights to appeal and to file

a pro se petition for discretionary review with the Texas Court of Criminal Appeals. See

TEX .R.APP .P. 25.2(d). The certification is defective, and has not been corrected by Appellant’s

attorney, or the trial court. To remedy this defect, this Court ORDERS Appellant’s attorney,

pursuant to TEX .R.APP .P. 48.4, to send Appellant a copy of this opinion and this Court’s

judgment, to notify Appellant of her right to file a pro se petition for discretionary review, and to

inform Appellant of the applicable deadlines. See TEX .R.APP .P. 48.4, 68. Appellant’s attorney

is further ORDERED to comply with all of the requirements of TEX .R.APP .P. 48.4.

       Having overruled Appellant’s issues presented for review, we affirm the trial court’s

judgment.


September 28, 2011
                                               DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Rivera, JJ.

(Do Not Publish)




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