Opinion filed November 12, 2015




                                     In The


        Eleventh Court of Appeals
                                  ___________

                              No. 11-13-00378-CR
                                  ___________

               FIDEL SERRANO MENJIVAR, Appellant
                                        V.
                    THE STATE OF TEXAS, Appellee


                On Appeal from the County Court at Law No. 2
                              Midland County, Texas
                        Trial Court Cause No. CR142949


                     MEMORANDUM OPINION
      The jury convicted Fidel Serrano Menjivar of the misdemeanor offense of
resisting arrest, search, or transportation. See TEX. PENAL CODE ANN. § 38.03 (West
2011). The trial court assessed Appellant’s punishment at confinement for a term of
180 days in county jail and a fine of $1,000. The trial court suspended the
confinement portion of Appellant’s sentence and placed him on community
supervision for a period of one year. In his sole issue on appeal, Appellant
challenges the sufficiency of the evidence to support his conviction. We affirm.
      We review the sufficiency of the evidence under the standard of review set
forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893,
912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—
Eastland 2010, pet. ref’d). Under the Jackson standard, we examine all of the
evidence in the light most favorable to the verdict and determine whether, based on
that evidence and any reasonable inferences from it, any rational trier of fact could
have found the essential elements of the offense beyond a reasonable doubt.
Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.
2010).
      Appellant argues that the evidence was insufficient to show that he
intentionally prevented an officer from arresting him because he did not know that
he was being arrested. Specifically, Appellant argues that he did not understand
what the officers were doing because he is a Spanish speaker and that the officers
made no attempt to secure the use of an interpreter to explain the purpose of the
police contact.
      In the complaint and information, the State alleged that Appellant
intentionally prevented Officer Stephen Standage from effecting the arrest, search,
and transportation of Appellant by using force against the officer. A person commits
the offense of 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 or another by using force against the peace officer. PENAL § 38.03(a). It is not
a defense to the prosecution of the offense that the arrest or search was unlawful. Id.
§ 38.03(b); State v. Mayorga, 901 S.W.2d 943, 945 (Tex. Crim. App. 1995).
      Officer Standage of the Midland Police Department testified that, on the
evening in question, he received a “check-person call” from the dispatcher. The
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dispatcher told him that there was a group of individuals standing on the corner of
South Terrell and East Walcott and that one of the individuals was pointing a firearm
in the air. When Officer Standage arrived, he observed three individuals standing
together and one individual, Appellant, walking toward a vehicle. Officer Standage
was wearing his uniform, and he identified himself as a police officer. He did not
see a gun when he arrived and, because he was not aware of where the gun was
located, believed that he needed to search everyone at the scene.
      Appellant continued to walk toward the vehicle, and Officer Standage again
identified himself and told Appellant to come toward him. Appellant did not stop,
moved closer to the vehicle, and began to open the door of the vehicle as though he
was going to reach in and get something. Officer Standage hurried to get to the
vehicle before Appellant could pull something out of the vehicle; he was concerned
that there was a gun in the vehicle. Officer Standage grabbed Appellant and pulled
him out of the vehicle.        Appellant pulled away and, in doing so, pulled
Officer Standage back toward the vehicle. Officer Standage pulled harder, and both
of them ended up on the ground. Appellant was “flinging” his arms around, and
Officer Standage could not handcuff him until another officer came to the scene to
assist. Officer Standage testified that, at the time he arrested Appellant, he still did
not know where the gun was. However, Officer Logan Ellinger of the Midland
Police Department testified that the gun was located before he left his car and before
he assisted Officer Standage in arresting Appellant. Officer Standage did not find
the gun in Appellant’s possession. Instead, Arturo Montoya, one of the other
individuals at the scene, showed Officer Standage the gun; it was a black BB gun.
      On cross-examination, Officer Standage testified that he arrested Appellant
for public intoxication because he “smelled a strong odor from an intoxicating
beverage emitting from” Appellant while they were on the ground. Officer Standage
acknowledged that, when he approached Appellant, he had not made a decision to
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arrest him for public intoxication. The public intoxication charge was later dropped
for insufficient evidence.
        Appellant’s neighbor, Olivia Martinez, testified that Appellant was across the
street in Appellant’s shop when the officers arrived. The officers came up to her
first; she was sitting in her car. Her husband, Montoya, was standing behind her
vehicle playing with the BB gun. The officers took the BB gun away from Montoya
and determined that it was in fact a BB gun within the first five minutes of their
arrival.1 The officers did not go over to talk to Appellant until after they had placed
the BB gun on top of the car. Martinez further testified that Appellant was never at
her property that evening but that, instead, Appellant and Montoya were talking to
each other back and forth from across the street. Based on her observations,
Appellant did not understand what was going on or why he was being placed in
handcuffs. Appellant asked, in Spanish, “What did I do?”; “What is going on?”; and
“Why are you arresting me?” Martinez and the other individuals at the scene tried
to translate for Appellant, but the police told them, “He will call y’all when he gets
to where he is going.” Martinez testified that Appellant did not struggle with the
officers when they were trying to get him out of or away from the car.
        Appellant maintains that the evidence presented was insufficient to show that
Appellant intentionally prevented Officer Standage from arresting him because he
did not know that he was being arrested. Officer Standage testified that he decided
to arrest Appellant for public intoxication when he smelled a strong odor of
intoxicating beverage coming from Appellant when they were on the ground. Thus,
Officer Standage did not intend to arrest Appellant when he approached Appellant;
he intended to arrest him only after the struggle began.



        1
         On cross-examination, Martinez testified that the BB gun was in the seat on the driver’s side of
the car and that the police had to ask them where the gun was located.

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      To establish that an officer was in the process of effecting an arrest, the State
must prove that the officer had a preexisting intent to arrest and took some action
pursuant to that intent. Latham v. State, 128 S.W.3d 325, 329 (Tex. App.—Tyler
2004, no pet.). Based on his own testimony, Officer Standage did not intend to arrest
Appellant for public intoxication until after Appellant began resisting him.
However, regardless of whether there was sufficient evidence to show that Appellant
resisted arrest by preventing Officer Standage from effecting an arrest, there was
sufficient evidence to show that Appellant resisted arrest, search, or transportation
by preventing Officer Standage from detaining him and effecting a search.
      Section 38.03 provides that a person commits an offense if he intentionally
prevents or obstructs a person he knows is a peace officer from effecting an arrest,
search, or transportation of the actor or another by using force against the peace
officer. PENAL § 38.03(a). Therefore, the State can prove that a person committed
the offense of resisting arrest, search, or transportation by showing that the person
prevented an officer from effecting an arrest, from effecting a search, or from
effecting transportation of that person. Appellant argues that the State neither
alleged nor presented evidence that Appellant resisted the search of his person. We
disagree with both propositions.
      In the complaint and information, the State alleged that Appellant
intentionally prevented Officer Standage from effecting the arrest, search, and
transportation of Appellant by using force against the officer. “When a person
interferes with the transaction or process of conducting a search, that person has
obstructed an officer ‘effecting a search.’” Jackson v. State, 993 S.W.2d 162, 164
(Tex. App.—Eastland 1999, no pet.). Evidence that the person pulls against an
officer, twists or squirms to thwart the officer’s movements, or struggles against an
officer is sufficient to show that the person used force against the officer. See, e.g.,
Pumphrey v. State, 245 S.W.3d 85, 89–92 (Tex. App.—Texarkana 2008, pet. ref’d).
                                           5
      Officer Standage testified that he believed that he needed to search everyone
at the scene for a gun because, when he arrived, he was not aware of where the gun
was located. He explained that he pulled Appellant away from the vehicle because
he was concerned that the gun might be in the vehicle. When he grabbed Appellant,
Appellant pulled away, and eventually, both he and Appellant ended up on the
ground. Officer Standage could not control Appellant on his own because Appellant
was “flinging” his arms around.
      Although Martinez and Officer Ellinger testified that Officer Standage located
the BB gun prior to the encounter with Appellant, Officer Standage maintained that
he had not located the gun until after he arrested Appellant. The jury, as the trier of
fact, was the sole judge of the credibility of the witnesses and of the weight to be
given their testimony. TEX. CODE CRIM. PROC. ANN. art. 36.13 (West 2007),
art. 38.04 (West 1979). As such, the jury was entitled to accept or reject any or all
of the testimony of any witness. Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim.
App. 1992). In addition, the jury was entitled to draw reasonable inferences from
the evidence. Jackson, 443 U.S. at 319. Here, the jury could have rejected the
testimony of Martinez and Officer Ellinger regarding the location of the gun and
could have reasonably inferred that Officer Standage was effecting a search of
Appellant when the struggle took place. The jury also could have reasonably
inferred that, regardless of whether Appellant could understand precisely what
Officer Standage was saying, Appellant knew that Officer Standage was a police
officer by the fact that he arrived on the scene in uniform and that Appellant knew
Officer Standage was trying to get his attention to investigate the situation further.
We have reviewed the evidence in the light most favorable to the verdict, and we
hold that a rational trier of fact could have found beyond a reasonable doubt that
Appellant intentionally prevented or obstructed Officer Standage, a person he knew
to be a peace officer, from effecting an arrest, search, or transportation of Appellant
                                           6
by using force against Officer Standage. Appellant’s sole issue on appeal is
overruled.
      We affirm the judgment of the trial court.




                                                   JIM R. WRIGHT
                                                   CHIEF JUSTICE


November 12, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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