                                                                                      ACCEPTED
                                                                                   05-14-01207-cr
                                                                       FIFTH COURT OF APPEALS
                                                                                  DALLAS, TEXAS
                                                                             7/27/2015 4:41:27 PM
                                                                                       LISA MATZ
                                                                                           CLERK




                                                                                                         5th Court of Appeals
                                                                                                          FILED: 7-29-15
                                                                                      Lisa Matz, Clerk
                       No. 05-14-1207-CR

                                                               RECEIVED IN
                    In the Court of Appeals               5th COURT OF APPEALS
                                                              DALLAS, TEXAS
                  For the Fifth District of Texas
                                                          7/27/2015 4:41:27 PM
                          Dallas, Texas                         LISA MATZ
                                                                  Clerk


                  Brittany Rae Booker,
                           Appellant
                                v.
                   The State of Texas,
                            Appellee

On appeal from the County Court at Law #3 of Collin County, Texas
                Honorable Lance Baxter, Presiding
                   Cause No. 003-83858-2014


                 Appellant’s Brief

                                                            Charles Pelowski
                                                               121 E. Myrtle
                                                       Angleton, Texas 77515
                                                            Tel. 979-849-8526
                                                    Charlie@smbattorney.com
                                                     State Bar No. 24061053
                                                       Attorney for Appellant
                      Identity of Parties and Counsel

Brittany Rae Booker—Appellant           The State of Texas—Appellee

Appellate Counsel                       Appellate Counsel

Charles Pelowski                        John Rolater
121 E. Myrtle                           Assistant District Attorney
Angleton, TX 77515                      Collin County District Attorney’s Office
                                        2100 Bloomdale Rd., Ste. 200
                                        McKinney, TX 75071

Trial Counsel                           Trial Counsel

Charles Pelowski                        Ryan King
121 E. Myrtle                           Assistant District Attorney
Angleton, TX 77515                      Collin County District Attorney’s Office
                                        2100 Bloomdale Rd., Ste. 200
William Anthony “Tony” Vitz
                                        McKinney, TX 75071
1413 Harroun Ave.
McKinney, TX 75069




                                    2
                                                   Table of Contents

Identity of Parties and Counsel ..................................................................................... 1
Index of Authorities....................................................................................................... 4
Statement of the Case .................................................................................................... 4
Issue Presented ............................................................................................................... 5
Statement of Facts .......................................................................................................... 5
Summary of the Argument ............................................................................................ 7
Argument ....................................................................................................................... 9
   Standard of Review ..................................................................................................... 9
   The only evidence presented in this case established that the so-called
   “interference” consisted of Appellant arguing with and questioning a police
   officer. This conduct was speech only, and was therefore not an offense under
   Texas Penal Code 38.15. ............................................................................................ 9
Prayer ............................................................................................................................ 14
Certificate of Compliance ........................................................................................... 15
Proof of Service ............................................................................................................ 15




                                                                  3
                                             Index of Authorities
Cases

Carney v. State, 31 S.W.3d 392 (Tex. App.—Austin 2000). ............................ 10, 11, 14

Freeman v. Gore, 483 F.3d 404 (5th Cir. 2007) ........................................................... 11

Haggerty v. Texas Southern University, 391 F.3d 653 (5th Cir. 2004). .................... 11, 12

Jackson v. Virginia, 443 U.S. 307 (1979). ....................................................................... 9

Statutes

Tex. Pen. Code 2.03. ................................................................................................... 10

Tex. Pen. Code 38.15 .............................................................................................. 9, 10


                                            Statement of the Case

Appellant, Brittany Rae Booker, was charged by information with Interference with

Public Duties in violation of Texas Penal Code § 38.15.1 The case proceeded to a

jury trial, wherein Appellant was convicted and sentenced to 90 days incarceration.2

The trial court suspended Appellant’s sentence and placed her on community

supervision for a period of 9 months.3 This is a direct appeal from that conviction

and sentence.




1
  (Clerk’s R. at 6).
2
  (Clerk’s R. at 52).
3
  (Clerk’s R. at 52).
                                                            4
                                       Issue Presented

It is a statutory defense to Texas Penal Code § 38.15 that a person’s conduct

involved speech alone, even if that person argues with officers, delaying or stalling an

investigation. At trial in the case at bar, the only evidence presented showed that

Appellant questioned a police officer’s authority and argued with him, delaying his

investigation, but that Appellant did not touch, block, or otherwise physically

obstruct the officer in any way. Was the evidence insufficient to convict Appellant

for violation of Texas Penal Code § 38.15?


                                      Statement of Facts

        On April 10, 2014, law enforcement responded to a bank robbery involving a

bomb threat.4 Police officers set up a perimeter and waited for explosive-ordinance-

disposal units to respond.5 This perimeter was described as a “porous perimeter,”

meaning that people were free to come and go from neighboring business, including

a nearby CVS drugstore.6 Brittany Booker, the Appellant, was standing on the




4
  (Rep.’s R. vol. 2 at 24:15-25:2).
5
  (Rep.’s R. vol. 2 at 26:1-12).
6
  (Rep.’s R. vol. 2 at 35:20-37:3).
                                              5
sidewalk outside of the CVS attempting to videotape the law enforcement response.7

Appellant was outside of the perimeter marked by law enforcement.8

        Officer Smith testified that he saw Appellant standing on the sidewalk near

the CVS and asked her to come toward his car, which was inside the perimeter

marked by law enforcement with orange cones.9 Appellant declined.10 Officer Smith

told Appellant that she needed to leave the area, and Appellant responded by saying,

“OK, but why?” and questioning Officer Smith about why she could not be there.11

Officer Smith testified that, at that point, law enforcement was “ready to roll,” and

he again told her to move.12 Appellant repeated her questions to Officer Smith

about why she could not be on the sidewalk, and Officer Smith arrested her

Interference with Public Duties.13

        Officer Smith testified that Appellant did not take any action toward him.14

She did not touch him.15 She did not block his vehicle with her body and she did




7
  (Rep.’s R. vol. 2 at 40:18-20).
8
  (Rep.’s R. vol. 2 at 68:24-69:4).
9
  (Rep.’s R. vol. 2 at 42:8; 67:24-68:2).
10
   (Rep.’s R. vol. 2 at 42:8).
11
   (Rep.’s R. vol. 2 at 42:12-13; 74:6-17).
12
   (Rep.’s R. vol. 2 at 41:15; 74:6-19).
13
   (Rep.’s R. vol. 2 at 42:20-22).
14
   (Rep.’s R. vol. 2 at 79:8-11).
15
   (Rep.’s R. vol. 2 at 79:12-13).
                                              6
nothing to physically obstruct the officer.16 The alleged interference consisted only

of arguing with or questioning Officer Smith.17 She did nothing to physically

interfere with Officer Smith’s investigation.18 She merely “delayed” or “stalled”

Officer Smith.19


                                  Summary of the Argument

        Texas Penal Code § 38.15 prohibits a person from interfering with a police

officer who is performing a lawful duty. Section 38.15 also provides that it is a

statutory defense to the offense of Interference with Public Duties that a person’s

conduct consisted of speech alone. Texas courts and the United States Court of

Appeals for the Fifth Circuit have recognized that arguing with an officer and

questioning his authority, without more, is mere speech. This is true even if the

person’s argument delays an officer from taking action or conducting an

investigation.

        In the instant case, Appellant was approached by Officer Smith and asked to

leave the sidewalk outside of a CVS near where law enforcement had set up a

perimeter to conduct a controlled detonation. The testimony at trial showed that


16
   (Rep.’s R. vol. 2 at 14-19).
17
   (Rep.’s R. vol. 2 at 79:20-22).
18
   (Rep.’s R. vol. 2 at 80:2-3).
19
   (Rep.’s R. vol. 2 at 79:25-80:2).
                                             7
Appellant was outside the marked perimeter when she was told to leave. Appellant

agreed to leave the area, but questioned Officer Smith about why she could not

remain outside of the marked perimeter. She briefly argued with Officer Smith,

questioning why he could be inside the marked perimeter but she could not be

outside of it.

       According to Officer Smith’s testimony, at no point did Appellant physically

touch, block, or otherwise physically impede him. Officer Smith testified that

Appellant was arrested because, by questioning his authority and arguing with him,

she delayed his investigation when he “was ready to roll.”

       The only evidence produced at trial showed that Appellant’s conduct

amounted to no more than arguing with the officer, delaying him. Texas and federal

courts have recognized that such conduct is not an actionable offense under Texas

Penal Code § 38.15.

       Because the only evidence presented at trial showed that Appellant’s conduct

amounted to nothing more than speech alone, the State failed to carry its burden of

proof beyond all reasonable doubt, and the evidence presented against Appellant

was insufficient to sustain a conviction for Interference with Public Duties.

       This Court should reverse Appellant’s conviction and render an acquittal.




                                           8
                                               Argument

Standard of Review

          Evidence is insufficient to sustain a guilty verdict if no rational trier of fact

could found that the State proved every element of the offense charged beyond all

reasonable doubt.20 Proof beyond a reasonable doubt is an essential requirement of

Due Process, and a conviction without sufficient proof is unconstitutional.21


The only evidence presented in this case established that the so-called
“interference” consisted of Appellant arguing with and questioning a police
officer. This conduct was speech only, and was therefore not an offense under
Texas Penal Code 38.15.

          Texas Penal Code 38.15 provides, in pertinent part, that “a person commits

an offense if the person with criminal negligence interrupts, disrupts, impedes or

otherwise interferes with a peace officer while the peace officer is performing a duty

or exercising authority imposed or granted by law.”22 It is “a defense to prosecution

under this section that the interruption, disruption, impediment, or interference




20
     See Jackson v. Virginia, 443 U.S. 307, 318 (1979).
21
   Id.
22
   Tex. Pen. Code 38.15(a)(1).
                                                     9
alleged consisted of speech only.”23 The State has the burden of disproving a raised

defense beyond all reasonable doubt.24

           In Carney v. State, the Court of Appeals in Austin held that arguing with

police officers “does not constitute an actionable offense” under Texas Penal Code

§ 38.15.25 Further, the court held that “speech is a statutory defense to the offense

charge[d] even if the end result is ‘stalling’.”26

           David Carney was arrested for interference with public duties in violation of

Texas Penal Code § 38.15 when police officers showed up at his house and

attempted to arrest his wife.27 Carney argued with the police, telling them that their

warrant was invalid and refusing to move from in front of the door to his house. See

id. Officers encircled Carney while he argued with them about entering the house.28

After some time, the officers “became antsy,” “determined that it was time to go in,”

“thought [Carney] had been given ample time,” and decided that Carney’s arrest was

“way overdue.”29




23
     Tex. Pen. Code 38.15(d).
24
     See Tex. Pen. Code 2.03.
25
     Carney v. State, 31 S.W.3d 392, 398 (Tex. App.—Austin 2000).
26
     See id.
27
     See id.
28
     See id.
29
     See id.
                                                 10
           In Carney, the State argued that

           [B]y arguing with the Troopers first in the front yard, then at the garage
           door, and then at the doorway leading from the garage into the
           residence proper, appellant was stalling the Troopers.... Appellant's
           actions of more than mere words were the direct cause of Trooper
           Jones having to push appellant to the side but--for appellant's physical
           presence at, in or near the doorway, he would have been neither
           pushed nor arrested.30

           But the Austin Court of Appeals found this argument unpersuasive.31 The

Court of Appeals conceded that Carney’s argument with the officers “delayed the

officers” entry into the home, but further recognized that speech alone is a statutory

defense to the charge of interference with public duties.32 The Court of Appeals

reversed Carney’s conviction and rendered an acquittal.33

           The United States Court of Appeals for the Fifth District has twice recognized

that Carney prohibits conviction for an offense under Texas Penal Code § 38.15

when a defendant’s conduct consists of speech only.34 Moreover, in applying Carney

the Fifth Circuit recognized that Texas law limits the application of section 38.15 to



30
     Id.
31
     See id.
32
     See id.
33
     See id. at 398-99.
34
  See Freeman v. Gore, 483 F.3d 404 (5th Cir. 2007); Haggerty v. Texas Southern University, 391 F.3d
653 (5th Cir. 2004).
                                                 11
an analysis to the defendant’s conduct alone without examining the surrounding

facts of the alleged offense.35

          The facts of the case at bar are extremely similar to Carney. On April 10, 2014,

law enforcement responded to a bank robbery involving a bomb threat.36 Police

officers set up a perimeter and waited for explosive ordinance disposal units to

respond.37 This perimeter was described as a “porous perimeter,” meaning that

people were free to come and go from neighboring business, including a nearby CVS

drugstore.38 Brittany Booker, the Appellant, was standing on the sidewalk outside of

the CVS attempting to videotape the law enforcement response.39 Appellant was

outside of the perimeter marked by law enforcement.40

          Officer Smith testified that he saw Appellant standing on the sidewalk near

the CVS and asked her to come toward his car, which was inside the perimeter

marked by law enforcement with orange cones.41 Officer Smith told Appellant that

she needed to leave the area, and Appellant responded by saying, “OK, but why?”




35
     See Haggerty, 483. F.3d at 559 (DeMoss, J. dissenting).
36
   (Rep.’s R. vol. 2 at 24:15-25:2).
37
   (Rep.’s R. vol. 2 at 26:1-12).
38
   (Rep.’s R. vol. 2 at 35:20-37:3).
39
   (Rep.’s R. vol. 2 at 40:18-20).
40
   (Rep.’s R. vol. 2 at 68:24-69:4).
41
   (Rep.’s R. vol. 2 at 42:8; 67:24-68:2).
                                                    12
and questioning Officer Smith about why she could not be there.42 Officer Smith

testified that, at that point, law enforcement was “ready to roll,” and he again told

her to move.43 Appellant questioned Officer Smith a second time about why she

could not be on the sidewalk, and Officer Smith arrested her “for interfering with

the proceedings that’s going on here for the investigation [sic.].”44

        Appellant did not take any action toward Officer Smith.45 She did not touch

him.46 She did not block his vehicle with her body and she did nothing to physically

obstruct the officer.47 The alleged interference consisted only of arguing with or

questioning Officer Smith.48 She did nothing to physically interfere with Officer

Smith’s investigation.49 She merely “delayed” Officer Smith.50

        Appellant’s conduct amounted to mere speech. This is the exact situation

addressed by Carney. Appellant only questioned the officer, delaying his

investigation. As the Carney Court correctly stated, “speech is a statutory defense to

the offense [of Interference with Public Duties] even if the end result is ‘stalling’” a

42
   (Rep.’s R. vol. 2 at 42:12-13; 74:6-17).
43
   (Rep.’s R. vol. 2 at 41:15; 74:6-19).
44
   (Rep.’s R. vol. 2 at 42:20-22).
45
   (Rep.’s R. vol. 2 at 79:8-11).
46
   (Rep.’s R. vol. 2 at 79:12-13).
47
   (Rep.’s R. vol. 2 at 14-19).
48
   (Rep.’s R. vol. 2 at 79:20-22).
49
   (Rep.’s R. vol. 2 at 80:2-3).
50
   (Rep.’s R. vol. 2 at 79:25-80:2).
                                              13
police officer’s investigation.51 This Court should reverse Appellant’s conviction and

render an acquittal.


                                        Prayer

          Because Appellant’s conduct, like David Carney’s conduct, amounted to

nothing more than speech, no rational fact finder could have found that the State

proved its case and negated the statutory defense beyond all reasonable doubt. Like

the Carney Court, this Court should reverse Appellant’s conviction and render an

acquittal.

                                               Respectfully submitted,


                                               /s Charles Pelowski

                                               Charles Pelowski
                                               State Bar No. 24061053
                                               121 E. Myrtle
                                               Angleton, Texas 77515
                                               Telephone: (979) 849-8526
                                               Facsimile: (979) 848-1877
                                               charlie@smbattorney.com
                                               ATTORNEY FOR APPELLANT,
                                               BRITTANY RAE BOOKER




51
     Carney, 31 S.W.3d at 398.
                                          14
                             Certificate of Compliance

I, Charles Pelowski, attorney for Appellant, hereby certify that this document

contains 1,787 words, exclusive of the content excepted by Tex. R. App. Pro.

9.4(i)(1). This is a computer-generated document, and I have relied on the word

count of the computer program used to prepare this document.

/s Charles Pelowski


                                   Proof of Service

I, Charles Pelowski, attorney for Appellant, hereby certify that I served a true and

accurate copy of the foregoing appellate brief to John Rolater, attorney for the State

of Texas, by electronic service.

/s Charles Pelowski




                                          15
