                                                                                       ACCEPTED
                                                                                  06-14-00150-CR
                                                                        SIXTH COURT OF APPEALS
                                                                             TEXARKANA, TEXAS
                                                                              1/6/2015 1:31:33 PM
                                                                                  DEBBIE AUTREY
                                                                                           CLERK

                                                 ORAL ARGUMENT REQUESTED ONLY
                                                      IF REQUESTED BY APPELLANT

                                                                FILED IN
                                                         6th COURT OF APPEALS
                        No. 06-14-00150-CR                 TEXARKANA, TEXAS
                                                         1/8/2015 4:23:00 PM
               IN THE SIXTH COURT OF APPEALS                 DEBBIE AUTREY
                     TEXARKANA, TEXAS                            Clerk
                        ________________

                          TIM PETTY,
                                            Appellant

                                  v.

                  THE STATE OF TEXAS,
                                            Appellee
                         ________________

                On Appeal in Cause No. CR-12-24244
                From the 336THJudicial District Court
                      of Fannin County, Texas

__________________________________________________________________


                     STATE’S BRIEF
__________________________________________________________________


                          John B. Setterberg
                        State Bar No. 24043915
                 Assistant Criminal District Attorney
                        Fannin County, Texas
                  101 E. Sam Rayburn Dr., Ste. 301
                         Bonham, Texas 75418
                             903-583-7448
                          903-583-7682 (fax)

                   ATTORNEY FOR THE STATE
                  IDENTITY OF PARTIES AND COUNSEL

      The State certifies that the following is a complete list of the parties,

attorneys, and other persons with interest in the outcome of this case:

(1)   John B. Setterberg, Assistant Criminal District Attorney, Fannin County,

      Texas, 101 East Sam Rayburn Drive, Suite 301, Bonham, Texas 75418;

      ATTORNEY FOR THE STATE OF TEXAS.

(2)   Micah Belden, 711 North Travis, Sherman, Texas 75090; TRIAL AND

      APPELLATE ATTORNEY FOR APPELLANT.

(3)   Timothy Earl Petty, TDCJ #01945203, Hutchins Unit, 1500 East Langdon

      Rd., Dallas, Texas 75241; APPELLANT.




                                          i
                                          TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ............................................................ i

TABLE OF CONTENTS .......................................................................................... ii

INDEX OF AUTHORITIES.................................................................................... iii

STATEMENT OF FACTS ........................................................................................1

SUMMARY OF THE ARGUMENT ........................................................................2

ARGUMENT .............................................................................................................3

   The evidence was sufficient to show that Appellant forcefully resisted
   officers as they tried to arrest him.......................................................................... 3

CONCLUSION ..........................................................................................................6

PRAYER ....................................................................................................................6

CERTIFICATE OF COMPLIANCE .........................................................................7

CERTIFICATE OF SERVICE ..................................................................................7




                                                             ii
                                   INDEX OF AUTHORITIES

Cases

Amado v. State, 983 S.W.2d 330 (Tex. App. – Houston 1999) .............................3, 4

Dobbs v. State, 434 S.W.3d 166 (Tex. Crim. App. 2014) .....................................4, 5

Goodman v. State, 66 S.W.3d 283 (Tex. Crim. App. 2000) ......................................5

Little v. State, 376 S.W.3d 217 (Tex. App. – Fort Worth 2012) ...............................3

Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) ...............................4

Rickels v. State, 202 S.W.3d 759 (Tex. Crim. App. 2009) ........................................4


Statutes

TEX. CODE CRIM. PRO. Art. 42.12 § 5(b) ...................................................................3

TEX. PENAL CODE § 38.03(a) .....................................................................................4




                                                       iii
                                No. 06-14-00150-CR

                      IN THE SIXTH COURT OF APPEALS
                            TEXARKANA, TEXAS
                               ________________

                                 TIM PETTY,
                                                    Appellant

                                         v.

                         THE STATE OF TEXAS,
                                                    Appellee
                                 ________________

TO THE HONORABLE JUSTICES OF THE SIXTH COURT OF APPEALS:

      COMES NOW the State of Texas, by and through her assistant criminal

district attorney, and respectfully submits this brief in the above-styled and

numbered cause. This is an appeal from an adjudication of guilt following a

deferred probation; the underlying offense was aggravated assault with a deadly

weapon (Cl. R. at 44). Upon adjudicating Appellant guilty of the offense, the trial

court sentenced him to serve seven years in prison (Cl. R. at 125).

                           STATEMENT OF FACTS

      On June 5, 2013, Appellant pled guilty and was given deferred probation for

the offense of aggravated assault with a deadly weapon (Cl. R. at 44). On March

21, 2014, the State filed a motion to adjudicate guilt alleging violations of the

Appellant’s community supervision (Cl. R. at 47). When officers from the Bonham
Police Department went to arrest the Appellant for these violations, he struggled

with and forcefully resisted their arrest. The officers testified that Appellant

forcefully pulled away from their grasp, that there was a struggle that lasted

anywhere from 20 seconds to a minute, and that it took two of them to subdue him

(Ct. R. vol. 2, at 30-32, 36-39). Moreover, one of the officers testified that during

the struggle, Appellant balled up his fist and reared back as if to strike the other

arresting officer, and that this prompted the officer to apply a choke hold and a

burst of pepper spray to the Appellant’s eyes (Ct. R. vol. 2, at 37). Additionally, a

neighbor who witnessed the event testified that the Appellant fought the officers

even after he was placed in handcuffs, and that he was able to break free by

leveling his shoulder into one of the officers and striking him in the chest or

midsection with his elbow (Ct. R. vol. 2, at 50-52). Based on this testimony, the

trial court found the allegation of resisting arrest to be true and sentenced

Appellant to seven years in the Texas Department of Criminal Justice, Institutional

Division (Ct. R. vol. 3, at 144, 170-71).


                       SUMMARY OF THE ARGUMENT

      Appellant’s sole point of error attacks the sufficiency of the evidence to

support the State’s allegation of resisting arrest. This point fails, however, because

there was direct testimony that the Appellant forcefully resisted and acted as if he

would strike the arresting officers, as well as testimony that he physically struck or
                                            2
pushed the officers after he was initially detained.                 Appellant’s argument

essentially asks this court to revisit the trial court’s determinations of credibility

and weight, and to balance differing eyewitness accounts that have already been

considered and resolved by the trial court. Those are discretionary findings that rest

solely with the trier of fact, and it is this Court’s responsibility to defer to those

findings. Because the trial court chose to believe evidence supporting the State’s

allegation, and because that evidence establishes every element of the allegation,

the evidence is legally sufficient to support Appellant’s conviction, and his point

should be overruled.

                                       ARGUMENT

The evidence was sufficient to show that Appellant forcefully resisted officers
as they tried to arrest him.

       In a hearing on a motion to revoke probation or adjudicate guilt 1 the State

must prove each and every element of the grounds asserted for revocation by a

preponderance of the evidence. Amado v. State, 983 S.W.2d 330, 332 (Tex. App. –

Houston 1999, pet. ref’d). This means that the greater weight of the credible

evidence creates a reasonable belief in the mind of the fact-finder that the

defendant has violated a condition of his probation. Rickels v. State, 202 S.W.3d


1
 The decision to proceed to an adjudication of guilt and revoke deferred adjudication community
supervision is reviewable in the same manner as a revocation of ordinary community
supervision. TEX. CODE CRIM. PRO. Art. 42.12 § 5(b); see also Little v. State, 376 S.W.3d 217,
219 (Tex. App. – Fort Worth 2012, pet. ref’d).
                                              3
759, 763-64 (Tex. Crim. App. 2009). The trial court acts as the sole trier of fact

and may judge the credibility and weight of the testimony. Amado, 983 S.W.2d at

332. On appeal, the court of appeal must view the evidence in the light most

favorable to the trial court’s ruling, id., meaning that a reviewing court is required

to defer to that court’s credibility and weight determinations. See Brooks v. State,

323 S.W.3d 893, 899 (Tex. Crim. App. 2010). A trial court’s ruling on a motion to

adjudicate is reviewed for an abuse of discretion, 2 and that ruling will not be

disturbed unless it is arbitrary, unreasonable, or without reference to any guiding

rules or legal principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim.

App. 1990).

         As a condition of his probation, Appellant was prohibited from committing

any offense against the laws of the State of Texas (Cl. R. at 41). Under Texas law,

a person commits the offense of resisting arrest if he intentionally prevents or

obstructs a person he knows to be a peace officer from effecting an arrest, search,

or transportation of the actor by using force against the peace officer. TEX. PENAL

CODE § 38.03(a). The phrase, “using force against a peace officer,” 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.” Dobbs v.

State, 434 S.W.3d 166, 171 (Tex. Crim. App. 2014).


2
    Rickels, 202 S.W.3d at 763-64.
                                          4
      In this case, both officers testified that Appellant resisted and struggled with

them for several seconds as they tried to arrest him. Additionally, Cpl. Brookshire

testified that Appellant raised a fist as if to strike Officer Cunningham. This, in

and of itself, is sufficient evidence to support the conclusion that the Appellant

used “violence or physical aggression, or an immediate threat thereof,” against a

peace officer. See Dobbs, 434 S.W.3d at 171. Direct evidence of a fact is always

legally sufficient to prove that fact. Goodman v. State, 66 S.W.3d 283 (Tex. Crim.

App. 2000). Moreover, Daniel Pinion testified that he saw Appellant struggle with

and charge the officers after he was handcuffed, and that the Appellant was able to

tackle one of the officers to the ground. This too is legally sufficient to support a

finding that Appellant resisted arrest.

      Appellant essentially asks this court to revisit the trial court’s findings as to

the weight and credibility of the evidence, and to resolve inconsistencies in the

testimony de novo, but this is not an appellate court’s role. Rather, the appellate

court must defer to such findings, and only disturb a lower court’s ruling for an

abuse of discretion. Because there is direct testimony that Appellant used or

threatened to use force against a peace officer to resist his arrest, the trial court did

not act unreasonably or arbitrarily in finding that allegation to be true. Thus, the

evidence is legally sufficient to support the trial court’s conclusion and Appellant’s

point of error should be overruled.

                                           5
                                  CONCLUSION

      Appellant’s sole point of error should be overruled because the evidence was

sufficient to support a rational finding that Appellant used force against known

peace officers to prevent his arrest. There was direct testimony that Appellant not

only threatened physical violence, but actually inflicted such violence in an effort

to prevent his arrest. As such, the evidence is legally sufficient to support the trial

court’s findings, and Appellant’s point of error should be overruled.

                                      PRAYER

      WHEREFORE, PREMISES CONSIDERED, there being no reversible error

in the trial of this case, the State respectfully moves this Court to overrule

Appellant’s point of error and affirm his conviction. The State further prays for

any and all such additional relief as the Court may deem just and appropriate.

      Dated: January 6, 2015
                                              Respectfully submitted,


                                              /s/   John B. Setterberg
                                              John B. Setterberg
                                              State Bar No. 24043915
                                              Assistant Criminal District Attorney
                                              Fannin County, Texas
                                              101 East Sam Rayburn Dr., Suite 301
                                              Bonham, Texas 75418
                                              903-583-7448
                                              903-583-7682 (fax)



                                          6
                        CERTIFICATE OF COMPLIANCE

      The undersigned hereby certifies that the foregoing document contains 1,278

words, exclusive of the portions described by TEX. R. APP. P. 9.4 (i)(1), as

computed by the computer program used to prepare the document.


                                            /s/   John B. Setterberg
                                            John B. Setterberg
                                            Assistant Criminal District Attorney
                                            Fannin County, Texas


                         CERTIFICATE OF SERVICE

      The undersigned hereby certifies that a true and correct copy of the
foregoing was served electronically to the individual listed below on this the 6th
day of January, 2015.


                                            /s/   John B. Setterberg
                                            John B. Setterberg
                                            Assistant Criminal District Attorney
                                            Fannin County, Texas

Micah Belden
711 North Travis
Sherman, Texas 75090
ATTORNEY FOR APPELLANT




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