Opinion issued October 11, 2012.




                                   In The

                           Court of Appeals
                                   For The

                        First District of Texas
                         ————————————
                           NOS. 01-11-00685-CR
                                01-11-00686-CR
                         ———————————
                    KEVIN ONEAL HINES, Appellant
                                     V.
                    THE STATE OF TEXAS, Appellee



         On Appeal from the County Criminal Court at Law No. 14
                          Harris County, Texas
               Trial Court Case Nos. 1740167 & 1740168



                       MEMORANDUM OPINION
      A jury convicted appellant, Kevin Oneal Hines, of evading arrest or

detention1 and resisting arrest.2 The trial court assessed punishment at 320 days’

confinement on each charge, to run concurrently, with 160 days’ credit for time

served. In his sole point of error, appellant contends the evidence is legally

insufficient to support his conviction for resisting arrest. We affirm.

                                 BACKGROUND

      On February 23, 2011 in the evening, Houston Police Department Officers

Tabor and Rippey were conducting surveillance on a barbershop at which they

suspected drug transactions were occurring. Appellant and another man pulled up

to the barbershop, went inside, came out a few minutes afterwards, got in their car,

and left. Finding the behavior of two men suspicious, Officer Rippey radioed to a

marked patrol car containing Officers Dominguez and Ryans to conduct a traffic

stop on the car. Dominguez and Ryans pulled the car over for failing to maintain a

single lane of traffic.    TEX. TRANSP. CODE ANN. § 545.060 (Vernon 2011).

      Dominguez approached the driver while Ryans approached appellant on the

passenger side of the car. When Dominguez asked the driver and appellant for

identification, appellant told Dominguez he did not have any identification, and

gave the name “Derrick Dawson” and a date of birth. The officers ran the name

1
      TEX. PENAL CODE § 38.04(a) (Vernon 2011) (trial court no. 1740167 and
      appeal no. 01-11-00685-CR).
2
      TEX. PENAL CODE § 38.03(a) (Vernon 2011) (trial court no. 1740168 and
      appeal no. 01-11-00686-CR).
                                          2
and date of birth provided on the computer and found no information, leading them

to believe that appellant had given them a false name. The officers then walked

back to the car to speak with appellant, who appeared nervous. In order to

investigate further and for reasons of officer safety, the officers asked appellant to

step out of the car; Dominguez testified that their purpose in doing so was to detain

appellant in order to talk to him and see if they could get him to give his real name.

Ryans told appellant he was detaining him in order to I.D. him and asked appellant

to turn around and place his hands behind his back. Appellant turned around, but

then pushed Ryans backwards before Ryans could handcuff him and turned to take

off. Ryans reached to grab appellant, who pushed Ryans off with his hand, broke

free from Dominguez who was holding him, and ran.

      Ryans ran after appellant while Dominguez went to the patrol car. When

appellant went to jump over the gate to an apartment complex, Ryans caught up to

him and grabbed appellant’s pants leg; appellant kicked Ryans off of him, fell over

the gate, and kept running. Dominguez jumped over the gate and chased appellant

through the complex, telling appellant “over and over again” to stop running and

that he was under arrest. Dominguez cornered appellant against a wall and a 15-

foot fence, whereupon appellant stopped running and started slowly walking

towards Dominguez. Dominguez pulled his Taser and commanded appellant “Get

on the ground. You’re under arrest.” Appellant continued walking towards

                                          3
Dominguez with clenched fists; Dominguez tasered him, but appellant got up and

started coming at Dominguez again, whereupon Dominguez pulled his pistol and

started backing up slowly in order to maintain some distance. Dominguez told

appellant “If you come any closer, I’m gonna shoot you.” Appellant made a dash

for it, with Dominguez in pursuit yelling at him to stop, and was tackled by

Officers Tabor and Satterwhite. Once tackled, Appellant kept fighting and pushing

at the officers with his hands, feet, and elbow. While the officers were still

wrestling with appellant, Ryans went to assist them. Ryans testified that while the

officers struggled with appellant, appellant pushed Ryans as well as the other

officers.

                LEGAL SUFFICIENCY OF THE EVIDENCE

      In his sole point of error, appellant contends that the evidence was legally

insufficient to prove that he was under arrest at the time he resisted by pushing

Officer Ryans with his hand. Specifically, appellant contends that at the time he

pushed Ryans, the officers were attempting to detain him, not to arrest him, and

therefore the evidence is legally insufficient to support a conviction of resisting

arrest under section 38.03(a). TEX. PENAL CODE ANN. § 38.03(a) (Vernon 2011).

The State responds that appellant pushed Ryans again after he fled the initial

detention.




                                        4
Standard of Review

      In assessing legal sufficiency, we determine whether, based on all of the

record evidence, viewed in the light most favorable to the verdict, a rational jury

could have found the accused guilty of all essential elements of the offense beyond

a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct. 2781,

2788–89 (1979); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003).

In conducting our review of the legal sufficiency of the evidence, we do not

reevaluate the weight and credibility of the evidence, but ensure only that the jury

reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App.

1993). It is the function of the trier of fact to resolve any conflict of fact, to weigh

any evidence, and to evaluate the credibility of any witnesses. See Dewberry v.

State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); see also Matson v. State, 819

S.W.2d 839, 843 (Tex. Crim. App. 1991). We therefore resolve any inconsistencies

in the evidence in favor of the verdict, Matson, 819 S.W.2d at 843, and “defer to

the jury’s credibility and weight determinations.” Marshall v. State, 210 S.W.3d

618, 625 (Tex. Crim. App. 2006). In a sufficiency review, we measure the

evidence against the hypothetically correct jury charge, even if the jury charge

given mirrors the indictment or information. See Malik v. State, 953 S.W.2d 234,

240 (Tex. Crim. App. 1997).




                                           5
Applicable Law

      Section 38.03(a) of the Texas Penal Code provides: “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 or another.” TEX. PENAL CODE ANN. §

38.03(a) (Vernon 2011). The information alleges that appellant “did then and there

unlawfully intentionally PREVENT AND OBSTRUCT M. RYANS a person he

knows is A PEACE OFFICER from effecting AN ARREST of [appellant] by using

force against M. RYANS, namely BY PUSHING M. RYANS WITH HIS HAND”

The language in the charge requires in order to convict that the appellant

“intentionally obstruct[ed] M. RYANS, a person he knows is a peace officer, from

effecting an arrest of [appellant] by using force against M. RYANS, namely, by

pushing M. RYANS with his hand.” [CR at 56]. Accordingly, to convict appellant

under this information, the State has to prove beyond a reasonable doubt that (1)

appellant (2) intentionally prevented or obstructed (3) Ryans, a person appellant

knew was a peace officer (4) from effecting an arrest of (5) appellant (6) by

pushing Ryans with his hand. See TEX. PENAL CODE ANN. § 38.03(a) (Vernon

2011).3


3
      We note that several courts have held that the manner and means of an
      offense is not an essential element of the offense and need not be included in
      the hypothetically correct charge, which we use to measure the sufficiency
                                           6
      An arrest is a process that starts when the peace officer begins to make

efforts to arrest the suspect and ends once the officer’s efforts to restrain or control

the suspect are completed. See Medford v. State, 13 S.W.3d 769, 772–73 (Tex.

Crim. App. 2000); Latham v. State, 128 S.W.3d 325, 329 (Tex. App.—Tyler 2004,

no pet.). A conviction for resisting an arrest requires the obstruction or resistance

to occur after the arrest begins but before it ends. In re M.C.L., 110 S.W.3d 591,

596 (Tex. App.—Austin 2003, no pet.); see also Castillo v. State, No. 01–08–

00188–CR, 2010 WL 45833 at *4 (Tex. App.—Houston [1st Dist.] January 7,

2010, pet. ref’d) (“A completed arrest distinguishes the offense of escape from the

offenses of evading or resisting arrest.”). Merely running from an arresting officer

will not amount to the force required for a conviction of resisting arrest under

section 38.03; actual force directed against an officer or another person must be

proved. Washington v. State, 525 S.W.2d 189, 190 (Tex. Crim. App. 1975). In

addition, a variance between the facts alleged in the indictment or information and

the evidence presented at trial may render the evidence insufficient to sustain a

conviction for the offense charged. See Stevens v. State, 891 S.W.2d 649, 650

(Tex. Crim. App. 1995).



      of the evidence. See, e.g., Thomas v. State, 303 S.W.3d 331, 333 (Tex.
      App.—El Paso 2009, no pet.); Phelps v. State, 999 S.W.2d 512, 516 (Tex.
      App.—Eastland 1999, pet. ref’d). We need not reach this issue because we
      hold that the evidence is sufficient to prove the manner and means alleged.
                                           7
      Whether a person is under arrest or merely temporarily detained depends on

the degree of restraint imposed on the person’s freedom to leave or move. State v.

Sheppard, 271 S.W.3d 281, 290 (Tex. Crim. App. 2008). “A person is in custody

only if, under the circumstances, a reasonable person would believe that his

freedom of movement was restrained to the degree associated with a formal

arrest.” Clark v. State, No. 01–07–00993–CR, 2009 WL 566448 at*3 (Tex. App.—

Houston [1st Dist.] March 5, 2009, no pet.) (citing Dowthitt v. State, 931 S.W.2d

244, 254 (Tex. Crim. App. 1996)). The occurrence of an arrest does not depend on

any bright line test, but rather must be determined by examining the totality of the

circumstances. Sample v. State, 292 S.W.3d 135, 137 (Tex. App.—Houston [14th

Dist.] 2008, pet. ref’d). Factors include the amount of force displayed, the duration

of a detention, the efficiency of the investigative process and whether it is

conducted at the original location or the person is transported to another location,

whether the officer told the detained person that he was under arrest or was being

detained only for a temporary investigation, as well as anything else that is

relevant. Sheppard, 271 S.W.3d at 291. “If the degree of incapacitation appears

more than necessary to simply safeguard the officers and assure the suspect’s

presence during a period of investigation, this suggests the detention is an arrest.”

Id.




                                         8
      However, an encounter between a suspect and police which begins as

noncustodial interrogation may escalate into a full custody arrest. Dowthitt, 931

S.W.2d at 255. In determining whether a noncustodial encounter has escalated into

custodial interrogation, for purposes of determining whether a Miranda violation

has occurred, courts will look at (1) the existence of probable cause to arrest; (2)

the police officer’s subjective intent; (3) the focus of the investigation; and (4) the

defendant’s subjective belief. Dowhitt, 931 S.W.2d at 254; Shpikula v. State, 68

S.W.3d 212, 218 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). However,

those factors are relevant only to the extent that they are manifested to the

defendant through the words and actions of law enforcement officials. Clark v.

State, 2009 WL 566448 at *3.

      Considering the Sheppard factors, Officers Ryans and Dominguez initially

sought to detain, rather than arrest, appellant. The officers used no force but asked

appellant to get out of the car, turn around, and place his hands behind his back.

Their purpose was to identify appellant. They did not transfer appellant to another

location, but meant to detain appellant at the scene for the time being. Ryans

informed appellant that he was being detained. Handcuffing appellant was a

reasonable safety precaution in light of appellant’s size and the danger to police in

conducting roadside narcotics investigations. Therefore, when appellant pushed




                                          9
Ryans the first time before Ryans could put handcuffs on him, arguably appellant

was not under arrest.

      However, the encounter quickly escalated into a police chase and physical

confrontation, which terminated in appellant’s arrest. Thus the question on appeal

is at what point could the trier-of-fact rationally find that the situation changed into

an attempted arrest, and whether the trier-of-fact could rationally find beyond a

reasonable doubt, resolving any inconsistencies in favor of the verdict, that

appellant pushed Ryans with his hand after that time.

      Once appellant fled from the scene, a rational trier of fact could find the goal

of the officers changed from detaining to arresting appellant. At that point, they

had probable cause to arrest Ryans for evading detention,4 failure to identify,5 or

assault.6 The officers were at that point endeavoring to arrest appellant, not merely

question him. They gave chase, radioed for assistance, tasered appellant, pulled a

gun, and repeatedly ordered appellant during the chase to stop running, that he was

under arrest, and to get on the ground. At least by the time appellant was informed

during the chase that he was under arrest, if not before, he was subject to arrest.

Finally, and after he must have known himself to be subject to arrest, appellant was

tackled to the ground by officers, where for a period of time he wrestled, pushing


4
      See TEX. PENAL CODE ANN. § 38.04(a) (Vernon 2011).
5
      See TEX. PENAL CODE ANN. § 38.02(b) (Vernon 2011).
6
      See TEX. PENAL CODE ANN. § 22.01(a)(3) (Vernon 2011).
                                          10
and kicking the officers with his hands, feet, and elbow before he could be

handcuffed. Ryans assisted in the struggle and there was evidence that appellant

pushed Ryans before the officers successfully handcuffed appellant. It was not

directly stated that appellant pushed Ryans with his hand; however, taking together

the evidence that appellant was pushing, kicking, and hitting the officers with his

hands, feet, and elbow during the struggle, and the evidence that Ryans

participated in the struggle and was pushed by appellant, a finder of fact could

have rationally concluded beyond a reasonable doubt that appellant’s hands

contacted Ryans at some point in a manner sufficiently similar to the alleged

pushing. Evidence that a defendant struggled and grabbed and jerked an arresting

officer’s arm was found to be sufficient evidence that defendant “struck” the

officer as alleged in the indictment, even though the precise term was not used at

trial. Jones v. State, 620 S.W.2d 129, 130 (Tex. Crim. App. 1981). Also, since the

testifying officers used the word “kicked” specifically when describing contact

made with appellant’s foot it would appear they meant by “push” to refer to

contact made by appellant’s hand. Therefore, there exists sufficient evidence to

support a rational finding that appellant pushed Ryans with his hand as alleged in

the charge and information, after he was subject to arrest and before the arrest was

completed.




                                        11
      Appellant relies extensively on Vaughn v. State for the proposition that he

was resisting detention and thus cannot be convicted under section 38.03. Vaughn

v. State, 983 S.W.3d 860, 863 (Tex. App.—Houston [14th Dist.] 1998, no pet.).

However, Vaughn is distinguishable from the present case because Vaughn was

not being arrested at the time his resistance occurred. Id. Vaughn “flail[ed] his

arms” when the officer attempted to handcuff him. Id. at 861. The officer then

managed to handcuff Vaughn and complete a pat down search of Vaughn’s person.

Id. The officer in Vaughn testified that the handcuffing of Vaughn was not an

arrest but merely a detention in order to conduct a pat down. Id. at 863.

Furthermore, and in contrast with appellant, at the time Vaughn resisted no

probable cause existed for his arrest. Id.

      We overrule appellant’s sole point of error.



                                  CONCLUSION

      We affirm the trial court’s judgment on the resisting arrest charge. Because

appellant filed a notice of appeal on the evading arrest or detention charge, but

raised no issues related thereto, we also affirm the trial court’s judgment for

evading arrest or detention.




                                             12
                                     Sherry Radack
                                     Chief Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




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