                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-11-00371-CR
                            NO. 02-11-00372-CR


MAGDALENA MEJIA GUERRERO                                           APPELLANT

                                      V.

THE STATE OF TEXAS                                                      STATE


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      FROM COUNTY CRIMINAL COURT NO. 1 OF TARRANT COUNTY

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                       MEMORANDUM OPINION1

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                              I. INTRODUCTION

     Appellant Magdalena Mejia Guerrero appeals her convictions for resisting

arrest2 and evading arrest or detention.3       She raises two issues on appeal


     1
      See Tex. R. App. P. 47.4.
     2
      See Tex. Penal Code Ann. § 38.03(a) (West 2011).
     3
      See Tex. Penal Code Ann. § 38.04(a) (West Supp. 2012).
challenging the sufficiency of the evidence to support her convictions. We will

affirm.

                                 II. BACKGROUND

      Benbrook police officer Michael Mullinax, the complainant, testified at trial.

According to Mullinax, he was on patrol January 12, 2011, at roughly 8:00 p.m.,

when he received a call to assist other officers regarding a criminal mischief. As

Mullinax was en route to assist, he observed a vehicle matching the description

in the call.   The vehicle was driven by Guerrero.       Mullinax testified that he

witnessed Guerrero acting suspicious at an intersection: “It appeared that the

vehicle was waiting on me to go -- to choose a direction to go. I proceeded to go

north, and [Guerrero] then turned south to go the opposite direction from me.”

Mullinax also said that he observed Guerrero commit three traffic violations—all

failures to properly use her turn signal. As Mullinax maneuvered his patrol car to

initiate a traffic stop, Guerrero pulled into a local Taco Bell parking lot. Mullinax

said that as he executed a stop, Guerrero parked her car and exited her vehicle. 4

      By Mullinax’s account, Guerrero then started walking through the parking

lot towards the drive-through, looking back at him several times.           Mullinax

ordered Guerrero to get back into her vehicle.        Guerrero continued walking

towards the Taco Bell and away from Mullinax, asking repeatedly why he had

stopped her. Mullinax said, “I said, ‘Ma’am get back in your vehicle.’ [But] [s]he

      4
        The video clearly depicts that Mullinax had initiated his overhead lights
prior to Guerrero parking and exiting her vehicle.


                                         2
continued to walk, never slowed down, just looked over her shoulder and was

asking why I stopped her.” Mullinax described Guerrero’s pace as “brisk” and

explained that he had to “walk faster than her to catch up to her.” Mullinax

characterized her walking as though she was attempting to flee him. At that

point, Mullinax grabbed Guerrero by the arm “to stop her from walking away.”

Mullinax said that Guerrero pulled away from him and, “fear[ing] that it was going

to turn into an altercation, . . . [he] forced her to the ground.”

      Mullinax testified that Guerrero then began to roll around, causing him to

fall and injure his knee. After regaining his balance, Mullinax attempted to place

handcuffs on Guerrero. As he grabbed her arm to handcuff her, Guerrero rolled

over onto Mullinax’s arm, pinning it underneath her body and injuring his thumb.

Mullinax recalled that during this time, Guerrero was screaming loudly,

repeatedly rolling around, and trying to pull away from him. A portion of the video

from Mullinax’s in-car camera was played for the jury.5

      Other officers soon arrived to assist Mullinax, and according to him,

Guerrero “started to try to kick” him while the officers were handcuffing her.

      5
        This court has watched the video from Mullinax’s in-car camera. Nothing
in the video contradicts Mullinax’s version of the incident. Much of the interaction
between Mullinax and Guerrero occurs outside of the camera’s view, and thus
there is little video footage of the incident. But the audio from the video depicts
Mullinax calmly ordering Guerrero to “get back in [her] vehicle” several times
prior to him grabbing her. Each time Guerrero responds with “why are you
stopping me?” After he grabs her, the audio then depicts Mullinax frequently
stating, “Give me your hand.” At the same time Guerrero is screaming, “Let go of
me.” Mullinax responds to Guerrero at one point by stating, “I’m not going to let
go of you. Now give me your other hand.”


                                            3
Mullinax said that at that time he told her, “[D]on’t try to kick me.”6 According to

Mullinax, Guerrero continued to try to kick him before the officers tried to search

her7 and again when he attempted to place her in his vehicle. Under cross-

examination, Mullinax testified that the video from his in-car camera does not

depict Guerrero kicking at him. Mullinax explained that this is so because the

video was pointed “straightforward from [his] patrol unit” and that the actions of

her kicking toward him were not on the video because they occurred outside the

view of the in-car camera.8

      Patrick Marx, a patrol officer for the City of Benbrook who assisted

Mullinax in handcuffing Guerrero, testified as well.9     Marx said that when he

arrived, he witnessed Mullinax and another officer “attempting to take” Guerrero

      6
       Mullinax can be heard telling Guerrero at one point in the video to “stop
kicking.” Mullinax makes repeated statements to Guerrero, some of which are
inaudible or are drowned out by the frequency and volume of Guerrero’s
screams.
      7
       The video depicts Guerrero pulling into the parking lot and then pausing.
She then drives to a marked parking spot, quickly exits her car, and starts
walking towards the Taco Bell. The video then captures only a brief moment of
Mullinax’s attempts to apprehend Guerrero against her struggles and then again
once the officers have handcuffed her, when they return to the front of the car
and search her person. The camera again loses focus on Mullinax and Guerrero
when he apparently is placing her in the back of the patrol vehicle.
      8
        Much of the interaction between Mullinax and Guerrero happens outside
of the in-car camera’s view.
      9
        Mullinax testified that four other officers responded to his location because
of a 9-1-1 dispatch involving a resisting arrest offense and because of the fact
that while entangled with Guerrero, he did not respond to routine calls from other
officers.


                                         4
into custody. He said that Guerrero was “kicking and screaming and actively

resisting” the other officers’ attempts to handcuff her. He said that he could not

understand what Guerrero was yelling.       Marx joined the efforts to handcuff

Guerrero.   Marx said that he could not determine who Guerrero was kicking

toward: “It was just a continuous kick with her feet and legs and her arms.” He

also expressed his belief that once the officers had handcuffed Guerrero and had

placed her in the backseat of a patrol car, “she began kicking the windows.”

      Guerrero also testified at trial. According to Guerrero, she intended to be a

Taco Bell patron that evening. She also testified that she was not walking toward

the drive-through, as Mullinax had testified, but rather the entrance. Although

she had heard Mullinax order her to get back in her car “a few” times, she

believed she had “not done anything wrong” and said she was proceeding to go

into Taco Bell. Guerrero said that she was not walking away from Mullinax,

rather actually walking toward him because of the location of the entrance. By

Guerrero’s account, she encountered Mullinax, and was simply standing next to

Mullinax, asking him, “[W]hy are you stopping me,” and “out of nowhere . . . he

just grabbed me so hard.” She stated that she never used any force towards

Mullinax.

      A jury found Guerrero guilty of resisting arrest and evading arrest or

detention. The trial court assessed punishment in each case with a $150 fine

and 180 days’ confinement but suspended the imposition of sentences and




                                        5
placed Guerrero on community supervision for twelve months.              This appeal

followed.

                                   III. DISCUSSION

      A.     Evidentiary Sufficiency Review

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Isassi v. State, 330 S.W.3d 633, 638

(Tex. Crim. App. 2010).

      B.     Resisting Arrest

      In her first issue, Guerrero contends that the evidence is insufficient to

support a conviction for resisting arrest. Specifically, Guerrero contends that the

evidence does not support that “the force described in the information was

directed at or used against . . . Mullinax.”

      In the information, the State alleged that Guerrero resisted “arrest or

search” . . . by using force against [Mullinax], to-wit: by kicking at [Mullinax] with

her foot.” To obtain a conviction in this case, the State was thus required to

prove that by kicking at Mullinax, Guerrero intentionally prevented or obstructed

Mullinax, who she knew was a peace officer, from effecting an arrest or search of

Guerrero. Tex. Penal Code Ann. § 38.03(a). A person can forcefully resist an

arrest without successfully making physical contact with the officer. See Sartain


                                           6
v. State, 228 S.W.3d 416, 424 (Tex. App.—Fort Worth 2007, pet. ref’d); see also

Haliburton v. State, 80 S.W.3d 309, 312–13 (Tex. App. —Fort Worth 2002, no

pet.) (holding that a defendant’s act of “kicking at” an officer constituted force

even though the kick did not connect).

      Guerrero contends that “the evidence does not support a rational and

reasoned finding that any kicking was directed at or against” Mullinax.

Specifically, Guerrero contends that the video does not depict her kicking at

Mullinax; that it only contains a statement by Mullinax to Guerrero for her to “stop

kicking;” and that it does not contain a statement, as Mullinax testified to, that she

stop kicking at him. Furthermore, Guerrero contends that Marx testified that he

did not see Guerrero specifically kick at Mullinax.      But Mullinax testified that

Guerrero did kick at him multiple times.        And neither the video nor Marx’s

testimony contradicts Mullinax’s testimony. The jury, as the exclusive judge of

the credibility of witnesses and the weight to be given to the evidence, possessed

sufficient evidence to find that Guerrero kicked at Mullinax. Palomo v. State, 352

S.W.3d 87, 90 (Tex. App. —Houston [14th Dist.] 2011, pet. ref’d). Furthermore,

even if Marx’s testimony contradicted Mullinax’s testimony, this court must give

deference to the responsibility of the factfinder to fairly resolve conflicts in

testimony, to weigh the evidence, and to draw reasonable inferences from basic

facts to ultimate facts. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000).

      Guerrero also contends that “[t]here is not sufficient evidence to show

beyond a reasonable doubt that [Guerrero] intentionally obstructed an arrest.”


                                          7
Guerrero’s complaint is that she did not know she was being stopped or arrested

and that, thus, she could not have resisted the arrest.

      In the resisting arrest context, the essential inquiry is whether the actor has

forcibly interfered with the “arrest” transaction or process to bring the actor under

control. Latham v. State, 128 S.W.3d 325, 329 (Tex. App.—Tyler 2004, no pet.);

Schrader v. State, 753 S.W.2d 733, 735 (Tex. App.—Austin 1988, pet. ref’d).

The legislature intended the expression “effecting an arrest” to encompass the

reasonable actions of a peace officer in bringing a person under the officer’s

control for the purposes of the law. Latham, 128 S.W.3d at 329; Schrader, 753

S.W.2d at 735. From the moment the peace officer begins his efforts to gain

control or physical restraint over the individual until the individual is restrained or

controlled, the officer is considered to be “effecting an arrest.”       Latham, 128

S.W.3d at 329; Bruno v. State, 922 S.W.2d 292, 294 (Tex. App.—Amarillo 1996,

no pet.). To establish that an officer was in the process of “effecting an arrest,”

the State must prove that the officer had the intent to arrest and took some action

pursuant to that intent. Latham, 128 S.W.3d at 329; Bruno, 922 S.W.2d at 294.

The process does not depend upon the officer verbalizing his intention to arrest.

White v. State, 601 S.W.2d 364, 366 (Tex. Crim. App. [Panel Op.] 1980); Bruno,

922 S.W.2d at 924. Although not conclusive, the officer’s opinion as to whether

the person was under arrest is a relevant and important factor to consider.

Latham, 128 S.W.3d at 329; Vaughn v. State, 983 S.W.2d 860, 862–63 (Tex.

App.—Houston [14th Dist.] 1998, no pet.).


                                          8
      Here, Mullinax testified specifically that he was arresting Guerrero.

Furthermore, Mullinax testified that one of the instances of Guerrero’s kicking at

him occurred after he had grabbed her arm but before the other officers arrived

and assisted him in placing handcuffs on her. Thus, the evidence establishes

that Guerrero’s act of kicking at Mullinax happened after he began his efforts to

gain control over Guerrero and prior to him actually gaining restraint over her.

Viewing the evidence in the light most favorable to the verdict, we determine that

a rational factfinder could have found that Guerrero intentionally prevented or

obstructed Mullinax from effecting an arrest by kicking at him as he attempted to

gain physical restraint over her. See Jackson, 443 U.S. at 319, 99 S. Ct. at

2789; Isassi, 330 S.W.3d at 638. We overrule Guerrero’s first issue.

      C.    Evading Arrest or Detention

      In her second issue, Guerrero contends that the evidence is insufficient to

sustain Guerrero’s conviction for evading arrest or detention. We disagree. To

convict her of the charged offense, the State had to prove that Guerrero

intentionally fled from a person she knew to be a peace officer attempting lawfully

to arrest or detain her. See Tex. Penal Code Ann. § 38.04(a). A defendant’s

knowledge that a police officer is trying to arrest or detain her is an essential

element of the offense of evading arrest. Rodriguez v. State, 799 S.W.2d 301,

302 (Tex. Crim. App. 1990); Hobyl v. State, 152 S.W.3d 624, 627 (Tex. App.—

Houston [1st Dist.] 2004) (“[T]he accused must know that the person from whom

he flees is a peace officer attempting to arrest or detain him.”), pet. dism’d,


                                        9
improvidently granted, 193 S.W.3d 903 (Tex. Crim. App. 2006). Here, the issue

is whether there is sufficient evidence from which the jury could reasonably infer

beyond a reasonable doubt that Guerrero knew that Mullinax was trying to arrest

or detain her.

      Mullinax testified that after he had initiated his traffic stop and pulled into

the parking lot, and as he was placing his patrol car in park, Guerrero got out of

her car and started walking toward the drive-through of Taco Bell. Mullinax also

testified, and the video from his in-car camera verifies, that he told Guerrero

multiple times to return to her car. Each time Guerrero responded with, “[W]hy

are you stopping me?” Mullinax described Guerrero as having briskly walked

away from him and said that he had to walk faster than her to catch her before he

grabbed her.     Even Guerrero’s own testimony confirms that she knew that

Mullinax was attempting to detain her but that Guerrero believed that she did not

need to comply because she believed that she “had not done anything wrong.”

In fact, Guerrero did not dispute that she did not intend to stop. Her testimony

and her argument on appeal is that she was heading toward the entrance of

Taco Bell and not the drive-through as Mullinax testified.       The video depicts

Guerrero getting out of her vehicle and walking away from Mullinax’s patrol car

towards the Taco Bell after he had initiated a traffic stop with his overhead lights,

and the video also clearly depicts Guerrero walking away from Mullinax as he

repeatedly orders her to get back into her vehicle. The reasonable inference

from this testimony and from watching the video is that Guerrero knew that


                                         10
Mullinax was attempting to detain her and that she intentionally walked away.

See Duren v. State, 87 S.W.3d 719, 724 (Tex. App.—Texarkana 2002, pet.

struck) (factfinder may use common sense and apply common knowledge,

observation, and experience when giving effect to reasonable inferences from

the evidence and may infer defendant’s knowledge or intent from acts, words,

and conduct). Viewing the evidence in the light most favorable to the verdict, we

determine that a rational factfinder could have found beyond a reasonable doubt

that Guerrero knew that Mullinax was attempting to arrest or detain her. See

Mayfield v. State, 219 S.W.3d 538, 541 (Tex. App.—Texarkana 2007, no pet.)

(observing that law does not require high-speed fleeing or even effectual fleeing;

it requires only an attempt to get away from a known officer of the law). We

overrule Guerrero’s second issue.

                                    IV. CONCLUSION

      Having overruled both of Guerrero’s issues, we affirm the trial court’s

judgments.




                                                  BILL MEIER
                                                  JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 16, 2012



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