                                                                                 PD-1473-14
                                                                COURT OF CRIMINAL APPEALS
                                                                                 AUSTIN, TEXAS
                                                             Transmitted 4/15/2015 11:32:13 AM
      April 15, 2015                                           Accepted 4/15/2015 12:38:35 PM
                                                                                  ABEL ACOSTA
                                 NO. PD-1473-14                                           CLERK

                                     IN THE

                       COURT OF CRIMINAL APPEALS OF TEXAS

                                 AUSTIN, TEXAS

WILLIAM BRYAN FINLEY, III              §                          APPELLANT

vs.                                    §

THE STATE OF TEXAS                     §                            APPELLEE


              FROM THE THIRD COURT OF APPEALS, AUSTIN, TEXAS
                        CASE NUMBER 03-13-00015-CR

                ON APPEAL FROM THE COUNTY COURT AT LAW #2
                        WILLIAMSON COUNTY, TEXAS
                          CAUSE NUMBER 11-01764-2



                        APPELLANT’S BRIEF ON THE MERITS



                                                  CHRISTOPHER M. PERRI
                                                  Chris Perri Law
                                                  1504 West Ave.
                                                  Austin, Texas 78701
                                                  (512) 917-4378
                                                  Fax No. (512) 474-8252
                                                  chris@chrisperrilaw.com
                                                  State Bar No. 24047769
                                                  COUNSEL FOR APPELLANT
                IDENTITY OF PARTIES AND COUNSEL


APPELLANT                    William Bryan Finley, III
                             (Defendant in the Trial Court)

COUNSEL FOR APPELLANT        Christopher M. Perri
IN THE APPELLATE COURTS      1504 West Ave.
                             Austin, Texas 78701

COUNSEL FOR APPELLANT        Jack Webernick
IN THE TRIAL COURT           120 W. 8th St.
                             Georgetown, Texas 78626-5852

APPELLEE                     The State of Texas

COUNSEL FOR APPELLEE         Doyle “Dee” Hobbs, Jr.
                             Williamson County Attorney
                             405 M.L.K., Suite 240
                             Georgetown, Texas 78626

COUNSEL FOR APPELLEE         Trey Thompson
IN THE TRIAL COURT           Assistant Williamson County Attorney
                             405 M.L.K., Suite 240
                             Georgetown, Texas 78626

COUNSEL FOR APPELLEE         James LaMarca
IN THE APPELLATE COURTS      Assistant Williamson County Attorney
                             405 M.L.K., Suite 240
                             Georgetown, Texas 78626




                               i
                                          TABLE OF CONTENTS

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

TABLE OF AUTHORITIES ................................................................................... iii

STATEMENT OF THE CASE ..................................................................................v

ISSUE PRESENTED ............................................................................................... vi

STATEMENT OF FACTS ........................................................................................2

SUMMARY OF THE ARGUMENT ......................................................................11

ARGUMENT AND AUTHORITIES ......................................................................11

         THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE TRIAL
         COURT’S VERDICT OF GUILTY ON THE RESISTING ARREST
         CHARGE. ......................................................................................................11

                  A.     Evidence of non-cooperation is not sufficient to establish
                  Resisting Arrest because the statute requires that the defendant use
                  force against the arresting officer……………………………… ..…12

                  B.     Viewing the evidence in the light most favorable to the verdict,
                  Appellant’s non-cooperative conduct cannot be deemed Resisting
                  Arrest because there was no evidence that he used force against the
                  officers………………………………………………………………21

PRAYER ..................................................................................................................24

CERTIFICATE OF SERVICE ................................................................................25

CERTIFICATE OF COMPLIANCE .......................................................................26


                                                            ii
                                          TABLE OF AUTHORITIES

Cases

Anderson v. State, 707 S.W.2d 267 (Tex. App.—Houston [1st Dist.] 1986, no pet.)
  ..............................................................................................................................17

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ......................................12

Bryant v. State, 923 S.W.2d 199 (Tex. App.—Waco 1996, pet. ref’d) ............ 18, 22

Dobbs v. State, 434 S.W.3d 166 (Tex. Crim. App. 2014) ........................... 13-14, 18

Finley v. State, 449 S.W.3d 145 (Tex. App.—Austin 2014, pet. granted) ..............18

Hopper v. State, 86 S.W.3d 676 (Tex. App.—El Paso 2002, no pet.) ....................15

Jackson v. Virginia, 443 U.S. 307 (1979)................................................................12

Leos v. State, 880 S.W.2d 180 (Tex. App.—Corpus Christi 1994, no pet.) ............16

Malik v. State, 953 S.W.2d 234 (Tex.Crim.App. 1997) ..........................................12

Pumphrey v. State, 245 S.W.3d 85 (Tex. App.—Texarkana 2008, pet. ref’d) .. 18-20

Raymond v. State, 640 S.W.2d 678 (Tex. App.—El Paso 1982, no pet.)......... 15, 17

Ross v. State, 133 S.W.3d 618 (Tex.Crim.App. 2004) ............................................12

Sartain v. State, 228 S.W.3d 416, 425 (Tex. App.—Fort Worth 2007, pet. ref’d) .13

Sheehan v. State, 201 S.W.3d 820 (Tex. App.—Waco 2006, no pet.) .............. 16-18

Thompson v. State, 987 S.W.2d 64 (Tex. Crim. App. 1999) ...................................21

Torres v. State, 103 S.W.3d 623 (Tex. App.—San Antonio 2003, no pet.) ............13

Washington v. State, 525 S.W.2d 189 (Tex. Crim. App. 1975) ........................ 14-15

                                                               iii
Statutes

TEX. P. CODE §38.03 .................................................................................... 11-13, 15

TEX. P. CODE §38.04 .............................................................................. 14-15, 19, 22

TEX. P. CODE §38.05 ................................................................................................23




                                                         iv
                         STATEMENT OF THE CASE


Nature of the Case:              On March 14, 2011, the Williamson County
                                 Attorney filed an information alleging that
                                 Appellant committed the offense of
                                 Resisting Arrest on or about March 5, 2011.
                                 CR 6.

Course of Proceedings:           A bench trial ensued from August 31 to
                                 September 1, 2012. RR I 3-5. Appellant was
                                 tried for Resisting Arrest and Hindering
                                 Apprehension (trial court cause number 11-
                                 01763-2), which allegedly arose out of the
                                 same incident. RR II 7-8. Four witnesses
                                 testified for the State, and four witnesses
                                 testified for the defense. RR I 3-4. The trial
                                 court acquitted Appellant on the Hindering
                                 Apprehension charge, but it found him
                                 guilty of Resisting Arrest. RR IV 5-6, CR
                                 46.

Trial Court’s Disposition:       On October 3, 2012, the trial court imposed
                                 its judgment and sentence on the Resisting
                                 Arrest conviction. CR 46; RR IV 11-12.
                                 Appellant was sentenced to 90 days in jail,
                                 probated for 15 months, including six days
                                 in jail as a condition of probation. CR 5, 46.
                                 Appellant appealed to the Third Court of
                                 Appeals.

Court of Appeals’ Disposition:   On August 28, 2014, the court of appeals
                                 affirmed the trial court’s judgment in a 2-1
                                 opinion. Appellant filed a motion for en
                                 banc reconsideration, which was denied on
                                 October 10, 2014. Appellant then filed a
                                 Petition for Discretionary Review, which
                                 this Court granted on March 18, 2015.

                                   v
                               ISSUE PRESENTED


When a person attempts to evade an unlawful arrest by refusing to comply with the

officers’ attempt to effectuate the arrest, while using no offensive force against the

officers, has this person committed the crime of Resisting Arrest? RR III 56-83.




                                          vi
                                 NO. PD-1473-14

                                      IN THE

                 COURT OF CRIMINAL APPEALS OF TEXAS

                                 AUSTIN, TEXAS

WILLIAM BRYAN FINLEY, III                §                            APPELLANT

vs.                                      §

THE STATE OF TEXAS                       §                              APPELLEE


         FROM THE THIRD COURT OF APPEALS, AUSTIN, TEXAS
                   CASE NUMBER 03-13-00015-CR

           ON APPEAL FROM THE COUNTY COURT AT LAW #2
                   WILLIAMSON COUNTY, TEXAS
                     CAUSE NUMBER 11-01764-2



TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:

      COMES NOW Appellant William Bryan Finley, III, by and through his

undersigned counsel, and offers this Brief on the Merits. This case presents a

compelling scenario that highlights the statutory distinction between Evading and

Resisting Arrest. Williamson County police officers attempted to unlawfully arrest

Appellant, and without using any force against them, Appellant exercised his right

to evade their violent, improper conduct. As a result, he was not guilty of Resisting


                                         1
Arrest as a matter of law. In support of this argument, Appellant would respectfully

show this Court the following:


                                STATEMENT OF FACTS


       Leander Police Department (LPD) Officer Ginger Fuller testified that she

was working a Warrant Roundup on March 5, 2011. RR II 20. LPD’s warrant

officer, Scott Connor, had compiled the list of active municipal court warrants, and

one of these warrants was for the arrest of Dennis Boyd for an outstanding

speeding ticket. RR II 21. Boyd lived at Appellant’s residence, and Appellant

answered when Officer Fuller knocked on the door.1 RR II 22-24. After Fuller

explained that she had a warrant for Boyd’s arrest, Appellant responded that Boyd

was asleep inside the home, and he requested that Fuller produce a copy of the

warrant. RR II 24-26. Officer Fuller deemed this request “very uncooperative,” and

she had an officer “pulled off the streets” in order to obtain a copy of the warrant to

show to Appellant.2 RR II 25-26. Appellant advised Fuller that once he received a

copy of the warrant, he would permit the police to speak to Boyd. RR II 26. Due to

LPD’s classification of Appellant’s behavior as “uncooperative,” a backup officer,


1
  Boyd is now Appellant’s son-in-law, and he was engaged to Appellant’s daughter at the time of
this incident. RR II 175, 204.
2
  LPD’s contemptuous attitude toward Appellant permeated the officers’ testimony throughout
the trial. Of course, Fuller would not have had to “pull” an officer off the streets if she had
simply brought a copy of the warrant with her on the initial approach to Appellant’s residence.
                                              2
Jarrett Rollins, arrived on scene. RR II 27.

       Corporal John Lauden brought a copy of the warrant, and after reviewing it,

Appellant determined that it contained deficiencies that made it invalid. RR II 26-

27. Lauden’s video of the incident demonstrates that despite Appellant’s opinion

about the warrant’s invalidity, Appellant agreed to show the warrant to Boyd. RR

V St.Ex.1 (Lauden, 8:49:06-8:49:11). Once inside his home, Appellant called 911

in order to inform the Williamson County Sheriff’s Office that LPD might be

serving a false warrant. RR II 28, 83-84. At this point, about 30 minutes had passed

since Officer Fuller’s initial arrival on scene. RR II 28.

       Fuller testified that Officer Connor, the warrant officer, arrived, and he

attempted to detain Appellant. RR II 30. At this point, Appellant began “pulling

away” from Connor’s attempt to place him in handcuffs. RR II 30. According to

Fuller, they then went to the ground, and Appellant’s hands were beneath his body

as Connor attempted to handcuff him. RR II 30. Officer Rollins then tazed

Appellant in the leg with a five-second drive-stun.3 RR II 31. Fuller testified that

Appellant continued “actively resisting,” so Rollins drive-stunned him again. RR II

31. Following this exercise of force, Appellant submitted to the officers’ attempt to

handcuff him. RR II 31. During the commotion, Boyd came to the door, and the


3
  Drive-stun tazing means that the prongs are not employed; a drive-stun occurs in close range,
as the tazer is directly applied to a part of the subject’s body. RR II 32.
                                              3
officers arrested him about a minute or two after the incident with Appellant had

concluded. RR II 33. Although two pocketknives were discovered in Appellant’s

pocket following his arrest, there was nothing illegal about his possession of these

items. RR II 32, 64.

      On cross-examination, Officer Fuller testified that Appellant never lied to

her during their initial encounter. RR II 40. Moreover, he did not attempt to hit,

kick, punch, or bite any of the officers. RR II 64. In fact, Fuller unequivocally

testified that Appellant did not use any force directly against the officers. RR II 65.

She characterized Appellant’s use of “force” as his conduct in preventing Officer

Connor from pulling his arm behind his back. RR II 72. Fuller testified that she

“would consider it force against allowing the officer to effect an arrest or

detention.” RR II 75.

      Corporal John Lauden testified that he brought a copy of Boyd’s warrant to

Appellant’s address. RR II 78. According to Lauden, within a minute of Connor’s

arrival, a scuffle occurred on Appellant’s front porch. RR II 88. Lauden did not

observe the incident because he was watching two females who came to the front

door during the commotion. RR II 88.

      Officer Scott Connor testified that he coordinated the Warrant Roundup on

March 5, 2011. RR II 112-13. Based on information that he received from

Corporal Lauden, Connor arrived on scene in order to detain Appellant for
                                          4
Hindering Apprehension. RR II 114. Connor testified that he hoped that by doing

so, Boyd would come outside of the residence. RR II 115. Connor testified that

upon Appellant answering his knock at the door, Connor inquired whether

Appellant’s son was inside the residence. RR II 116-17. Appellant answered that

his son was not inside, but his future son-in-law was there. RR II 117. Based on

this response and information from both Lauden and Fuller, Connor testified that

he “figured it was time to go ahead and put a stop to the games.” RR II 117.

Connor told Appellant to turn around and place his hands behind his back. RR II

117. Connor testified that Appellant clenched up, pulling his arm away. RR II 118.

Because Connor could not fully control Appellant, Officer Rollins assisted him.

RR II 118. They then pinned Appellant against the front door. RR II 118. Connor

testified that Appellant “was actively pulling away and trying to get away from

us.” RR II 118. When Appellant failed to comply with Connor’s order for him to

get on the ground, Connor took him to the ground in order to gain control. RR II

118. Connor clarified that he took Appellant to the ground by using Connor’s right

leg to trip Appellant off of his balance. RR II 124. Connor further testified that the

porch where the incident occurred is a confined space. RR II 124.

      Once Appellant was on the ground, Officer Connor jammed his left knee

into Appellant’s lower back area while holding him down. RR II 124. Officer

Rollins deployed his tazer by drive-stunning Appellant in the left calf. RR II 126.
                                          5
Rollins then deployed a second drive-stun tazing cycle, and Appellant complied.

RR II 127. Although pocketknives were found in Appellant’s pocket following his

arrest, Connor testified that he was unaware of these knives during the scuffle. RR

II 128, 136-37.

      On cross-examination, Officer Connor testified that he drafted a Probable

Cause Affidavit on the basis of the alleged Resisting Arrest, and in this affidavit,

he stated that the following actions constituted the act of Resisting: (1) Appellant

tensing up his body, (2) Appellant refusing to put his hands behind his back, and

(3) Appellant attempting to keep his hands underneath his body while he was on

the ground. RR II 134, CR 6. Connor testified that Appellant did not hit him with

his hands, slam against him with his body, or kick at him. RR II 138. Connor

clarified his basis for the Resisting Arrest charge: “By not allowing me to place

him in handcuffs, I would say that he was using force to resist me.” RR II 139.

      Officer Connor’s in-car video reflects that upon Connor’s arrival, Connor

discussed the situation with the other officers on scene and seemed annoyed that

Appellant had called the Williamson County Sheriff’s Office about LPD serving a

false warrant. RR V St.Ex.1 (Connor, at 9:03:46-9:03:56). When Appellant

answered the door, Connor inquired whether Appellant’s son was inside the

residence. RR V St.Ex.1 (Connor, at 9:04:59). Appellant explained that his son was

not inside, but his future son-in-law (i.e., Boyd) was there. RR V St.Ex.1 (Connor,
                                         6
at 9:05:00-9:05:04). Before Appellant completed his explanation, Connor told him

to “turn around, put your hands behind your back.” RR V St.Ex.1 (Connor, at

9:05:04-9:05:05). Connor then aggressively growled at Appellant to get on the

ground. RR V St.Ex.1 (Connor, at 9:05:13-9:03:15). Appellant objected to the

brutality of the situation: “What the hell’s wrong with you?!” RR V St.Ex.1

(Connor, at 9:05:16). A few seconds later, an officer yelled out “tazer, tazer!” RR

V St.Ex.1 (Connor, at 9:05:22).

      LPD Officer Jarrett Rollins added further details about the incident.

According to Rollins’ testimony, when Officer Connor attempted to place

Appellant in handcuffs, Appellant pulled away. RR II 154. Connor grabbed

Appellant’s left hand while Rollins attempted to grab his right hand, but Appellant

pulled away. RR II 154. After Connor took Appellant to the ground, Rollins

employed two separate drive-stun cycles with his tazer. RR II 155. The first cycle

lasted about three seconds, while the second cycle lasted about five seconds. RR II

155. Rollins testified that he was not endangered by the alleged force used by

Appellant. RR II 162. Appellant never lashed out at any of the officers, and he did

not attempt to kick or hit the officers in any way. RR II 163, 165. In fact, Rollins

testified that Appellant never used force against the officers at all. RR II 167.

      Dennis Boyd testified that he lived at Appellant’s residence on March 5,

2011, and he is now Appellant’s son-in-law. RR II 174-75. He was asleep when
                                           7
Appellant came into his bedroom to inform him that an officer was on her way

with a copy of a warrant for his arrest, and he needed to get ready. RR II 178. Boyd

testified that as he entered the living room after getting dressed, he heard a

commotion on the porch and officers saying “tazer, tazer, tazer.” RR II 179-80.

Boyd further testified that Appellant never tried to prevent him from going outside

to deal with the warrant. RR II 189.

      Joel Lightford testified that he lives directly across the street from

Appellant’s residence. RR II 190. Lightford came outside of his front door shortly

after 9:00 a.m. on March 5, 2011, when he noticed police cars. RR II 191-92.

Lightford witnessed three male officers on the front porch of Appellant’s

residence. RR II 192. One officer was positioned to the left of Appellant, and the

other two were on top of him. RR II 192. Lightford testified that the two officers

who were on top of Appellant were aggressive and pulled tazers. RR II 193. One of

the officers aggressively slammed Appellant’s head against the ground over five

times. RR II 194. Lightford did not witness Appellant hit, kick, push, or make any

type of move towards the officers. RR II 194. Lightford further testified that he

only knows Appellant as his neighbor, and they are not close personal friends. RR

II 195.

      Appellant’s daughter, Patricia Boyd (hereafter “Patricia”), testified that she

was living at Appellant’s residence with Dennis Boyd at the time of this incident.
                                         8
RR II 204. Initially, she was asleep in bed with Dennis when Appellant came into

their bedroom to wake them up; Appellant came back a little bit later to show

Dennis a piece of paper. RR II 214-15.

      Patricia testified that she was about four feet away from the events on the

porch. RR II 205. The commotion began about five seconds after Appellant went

outside to talk to Officer Connor. RR II 205-06. Connor quickly turned Appellant

around by placing both hands on his arm and shoulder, and then Connor slammed

Appellant against the front door. RR II 206, 208. Appellant clasped his right hand

onto his left wrist in front of his body. RR II 206. Another officer then assisted

Connor, and they took Appellant to the ground, forcing him into a rock pillar in the

process. RR II 208. Patricia testified that Appellant did not make any of the

following actions towards the officers: (1) swinging, (2) kicking, or (3) pushing.

RR II 209, 211. In fact, Appellant’s hands were clasped together underneath his

stomach while he was on the ground. RR II 209-10. Patricia testified that Officer

Connor slammed Appellant’s head into the concrete ground about three times with

extreme force. RR II 210.

      Appellant testified that when he first encountered Officer Fuller, she only

had a piece of paper with a list of names and addresses. RR III 16. He asked her to

obtain a copy of the warrant, and she volunteered to do so. RR III 16. Appellant

proceeded inside to wake up Dennis Boyd. RR III 17. When Fuller returned with a
                                         9
copy of the warrant about 15 minutes later, he told her that even though he

believed the warrant was invalid, he would inform Boyd, who would then come

outside. RR III 19-20. Appellant testified that he called 911 so that the

“conservators of the peace” would come to the property to ensure that no laws

were being violated. RR III 21. He then gave the copy of the warrant to Boyd, who

intended to come outside. RR III 21. Moments later, Officer Connor knocked on

his door. RR III 21. Appellant testified that he went outside, where four officers

were waiting for him. RR III 22. Connor asked if Appellant’s son was home, and

before he could finish clarifying that Boyd was his future son-in-law, Officer

Connor put both hands on Appellant’s left arm. RR III 24. Appellant testified that

he was afraid that Connor was trying to break his arm, so he clasped his right hand

onto his left wrist in order to prevent Connor from forcing his left arm behind his

back. RR III 24. Appellant had torn his right rotator cuff 20 years ago, and he did

not want to injure his good arm. RR III 24, 26.

      Appellant testified that he was spun around and slammed into the front door.

RR III 26. The officers then slammed him into a limestone column on his porch.

RR III 27. Appellant testified that he still has limestone marks on his coat from

being slammed into the column. RR III 28.

      Appellant testified that he had nowhere to retreat because he was confined

by walls on three sides of the front porch, and the fourth side was the stairs going
                                        10
down. RR III 28. After being taken to the ground, Appellant’s arms were hooked

together underneath his body. RR III 29. At one point, an officer forcefully grasped

his left ear and used it has a handle in order to slam his head into the concrete three

times while he was being tazed on the back left leg. RR III 30. Appellant testified

that he did not kick, push, or pull away from the officers in a rough manner. RR III

29-30.


                        SUMMARY OF THE ARGUMENT


      The evidence was insufficient to support a guilty verdict on the Resisting

Arrest charge. There was not one scintilla of evidence that Appellant used force

against the officers, as required by TEX. P. CODE §38.03. Appellant’s conduct

constituted passive non-cooperation, and it presented no danger to the arresting

officers. As a result, his conduct can be more aptly characterized as an attempt to

evade the officers. Because the officers were unlawfully arresting him for

Hindering Apprehension, Appellant had the right to engage in this conduct.

Appellant never crossed the line from Evading to Resisting, and, as a result, he

should have been acquitted of Resisting Arrest.


                        ARGUMENT AND AUTHORITIES

      THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE TRIAL
      COURT’S VERDICT OF GUILTY ON THE RESISTING ARREST
                                          11
      CHARGE.

      In assessing the sufficiency of the evidence, an appellate court reviews 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 offense beyond

a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Ross v. State,

133 S.W.3d 618, 620 (Tex. Crim. App. 2004). Courts measure the sufficiency of

the evidence against a hypothetically correct jury charge. See Malik v. State, 953

S.W.2d 234, 240 (Tex. Crim. App. 1997). When reviewing all of the evidence

under the Jackson standard of review, the question is whether the factfinder’s

ultimate determination was a rational one. Brooks v. State, 323 S.W.3d 893, 902

(Tex. Crim. App. 2010).

             A. Evidence of non-cooperation is not sufficient to establish
                Resisting Arrest because the statute requires that the
                defendant use force against the arresting officer.

      As a starting point in the analysis, a review of the Resisting Arrest statute is

appropriate. TEX. P. CODE §38.03(a) defines the offense:

      A person commits an offense if he intentionally prevents or obstructs
      a person he knows is a peace officer or a person acting in a peace
      officer’s presence and at his direction from effecting an arrest, search,
      or transportation of the actor or another by using force against the
      peace officer or another.

Based on this statute, a defendant’s use of force is not enough to meet the statutory

definition; instead, the defendant must use force “against the peace officer.”
                                         12
      In determining whether a defendant used force against an officer, courts

distinguish between acts of “passive resistance” and acts that constitute actual

force against an officer. See Sartain v. State, 228 S.W.3d 416, 425 (Tex. App.—

Fort Worth 2007, pet. ref’d). For example, the act of flailing one’s arms at an

officer qualifies as force against an officer and can support a conviction for

Resisting Arrest. Id. However, making an effort to avoid an officer’s detention

attempt would not qualify as Resisting Arrest unless the defendant used some force

against the officer. Compare id. at 424, with Torres v. State, 103 S.W.3d 623, 627

(Tex. App.—San Antonio 2003, no pet.) (where defendant used the requisite force

to support a Resisting Arrest charge when he raised his arm and knocked the

officer’s hand away to prevent the officer from handcuffing him).

      This Court recently addressed the Resisting Arrest statute, as codified in

TEX. P. CODE §38.03(a). See Dobbs v. State, 434 S.W.3d 166 (Tex. Crim. App.

2014). In that case, the defendant held a firearm as officers attempted to arrest him.

Dobbs, 434 S.W.3d at 168. However, the defendant did not use or threaten to use

the firearm against the officers; instead, he pointed the gun at his own temple. Id.

The defendant then retreated inside his house, where he was tazed and fell to the

floor. Id. After the defendant refused to comply with an officer’s order to put his

hands behind his back, he was again tazed. Id. At this point, the officers

successively arrested the defendant and transported him to jail. Id.
                                         13
      In determining that the evidence was insufficient to support the jury’s

verdict convicting the Dobbs defendant of Resisting Arrest, this Court analyzed the

statute and found that “the statutory language plainly requires a use of force

directed ‘against’ the officer himself, not against his broader goal of effectuating

an arrest.” Id. at 171. This Court further explained:

      The Legislature’s inclusion of the word “against” before the words
      “the peace officer” signifies that it intended to require proof that a
      defendant not only generally used force in the presence of the officer,
      but also that he specifically used force in the direction of and/or in
      contact with, or in hostility or opposition to, the officer. See [TEX. P.
      CODE §38.03(a)]. The statutory language thus requires not merely a
      showing that the actor engaged in some conduct designed to delay his
      arrest or to make his arrest more difficult, but rather that he have used
      some kind of force in opposition to, in the direction of, or in contact
      with the officer himself for the purpose of preventing an arrest. See id.
      Were we to interpret the phrase “against the peace officer” as
      encompassing any and all force employed for the purpose of opposing
      the officer’s goal of effectuating an arrest, we would effectively
      render that phrase superfluous because the other statutory terms
      already require proof that the actor prevented or obstructed an arrest
      through his use of force.
                                                                   Id. at 171-72

      In order for the evidence to be sufficient to support a Resisting Arrest

conviction, the defendant must engage in conduct that is more than merely

Evading. See TEX. P. CODE §38.04. “[The Resisting Arrest statute] applies only to

resistance by the use of force. One who runs away or makes an effort to shake off

an officer’s detaining grip may be guilty of evading arrest under §38.04, but he is

not responsible under this section.” Washington v. State, 525 S.W.2d 189, 190
                                          14
(Tex. Crim. App. 1975) (quoting Seth S. Searcy III & James R. Patterson, Practice

Commentary, TEX. P. CODE §38.03).

       The distinction between the Evading and Resisting statutes is helpful in

demarcating the type of force that elevates conduct to Resisting Arrest. In enacting

the Evading statute, the Legislature included a defense for people who evade an

unlawful arrest. See TEX. P. CODE §38.04(a) (requiring that the criminal act of

fleeing be from an officer attempting lawfully to arrest a person). Meanwhile, the

Legislature clearly forbids a defendant accused of Resisting Arrest from asserting a

defense that the arrest was unlawful. See TEX. P. CODE §38.03(b). Courts

interpreting this distinction between the two statutes have found that there is no

danger of injury to the officers in the act of Evading, while the act of Resisting

presents a danger to an arresting officer. See Raymond v. State, 640 S.W.2d 678,

679 (Tex. App.—El Paso 1982, no pet.). 4

       As a result of the danger inherent in the act of Resisting Arrest, a defendant

cannot claim that his use of force against the officer is excused by the unlawful

nature of the arrest. Even in the context of an unlawful arrest, the Legislature

sought to discourage people from endangering the safety of officers. However, a

4
  Appellant acknowledges that the El Paso Court of Appeals disavowed Raymond to the extent
that it endorsed a toward/away distinction in analyzing the requisite force under the Resisting
Arrest statute. See Hopper v. State, 86 S.W.3d 676, 679 (Tex. App.—El Paso 2002, no pet.).
However, the Raymond court’s analysis remains rooted in logic regarding the demarcation
between Evading and Resisting in terms of the level of danger posed to the officer.
                                              15
person can flee an unlawful arrest or detention because no endangering force is

being used against the officer. Thus, the law allows a person to make efforts to

avoid an unlawful arrest, with the boundary on this allowance being the point at

which force is used against the officer. Up until that point, the defendant’s conduct

has not directly endangered the officer. See Sheehan v. State, 201 S.W.3d 820, 823

(Tex. App.—Waco 2006, no pet.) (employing the distinction between conduct that

endangers an officer versus conduct that poses no such danger).

      Several fact patterns are helpful in highlighting the difference between

Evading and Resisting. In Leos v. State, arresting officers forced the defendant to

the ground, but he continued to struggle by holding his hands to his stomach so

that the officers could not handcuff him. 880 S.W.2d 180, 181 (Tex. App.—Corpus

Christi 1994, no pet.). This defendant also attempted to crawl away on his

shoulders and knees. Id. The court of appeals noted that while this defendant’s

conduct certainly suggested the use of force, it did not constitute Resisting Arrest

because the force was not directed against the officers. Id. at 184. The court

explained:

      The idea of violence directed specifically toward [the arresting
      officer] conflicts with this image of appellant crawling on his
      shoulders and knees with his hands clasped to his stomach. By
      attempting to crawl away, appellant invited prosecution for evading
      arrest. Merely trying to flee does not, however, involve sufficient
      force directed at the peace officer to sustain a conviction for resisting
      arrest. Nor is the peace officer the object of any force expended in
                                         16
      shaking off a detaining grip, which implies no less force than refusing
      to submit to the handcuffs.
                                                       Id. (citations omitted)

      Likewise, in Raymond, the defendant’s act of pulling his arm away from an

officer’s detaining grip did not qualify as force against the officer, and, thus, he

could not be guilty of Resisting Arrest. 640 S.W.2d at 679; see also Anderson v.

State, 707 S.W.2d 267, 270 (Tex. App.—Houston [1st Dist.] 1986, no pet.) (finding

that “[p]ulling away from a police officer does not constitute a force against a

police officer and is not sufficient to sustain a conviction for resisting arrest.”).

      Sheehan is also persuasive authority on this issue. See 201 S.W.3d 820 (Tex.

App.—Waco 2006, no pet.). In that case, the defendant attempted to avoid an

arrest by standing up, pulling his hands into his chest, and leaning towards his

bunk bed. Id. at 821. Reviewing the relevant case law, the Waco Court of Appeals

found that “[c]ourts have concluded that non-cooperation with an arrest is not an

act of ‘use of force against’ a peace officer under the resisting arrest statute…”

201 S.W.3d at 822. The court then gave three examples of non-cooperation that do

not qualify as Resisting Arrest: (1) shaking off an officer’s detaining grip, (2)

pulling away from an arresting officer after being arrested, and (3) crawling away

from an arresting officer. Id. at 822-23. The court then stated in bold letters:

“Thus, refusing to cooperate with being arrested does not constitute resisting

arrest by force.” Id. at 823 (emphasis in original).
                                           17
      In order for a defendant’s non-cooperation to constitute Resisting Arrest, it

must be combined with some element of force against the arresting officer. Id. For

example, “evidence of non-cooperation combined with violent swings of the body

and a forward movement causing the officer and the defendant to fall off a porch

was sufficient to establish resisting arrest.” Id. (citing Bryant v. State, 923 S.W.2d

199, 206 (Tex. App.—Waco 1996, pet. ref’d)).

      Turning to the case at bar, the Third Court of Appeals’ majority opinion

focused on the fact that this Court in Dobbs cited Pumphrey v. State, a Texarkana

court of appeals case in which the defendant’s “forceful pulling away from the

officer” constituted force exerted “at or in opposition to” the peace officer. See

Finley v. State, 449 S.W.3d 145, 149 (Tex. App.—Austin 2014, pet. granted)

(majority opinion); see also Dobbs, 434 S.W.3d at 172 (citing Pumphrey v. State,

245 S.W.3d 85, 89-90 (Tex. App.—Texarkana 2008, pet. ref’d)).

      The majority’s reliance on this dicta from the Dobbs opinion is misplaced

for two reasons. First, the Pumphrey defendant did more than merely pull away, as

she committed the following acts of offensive force against the officer: “jerking

against, turning in circles to resist, twisting and squirming to thwart, and struggling

against.” See 245 S.W.3d at 89. These latter acts align the outcome of Pumphrey

with the aforementioned cases, as this conduct can be deemed sufficient offensive

force against the arresting officer to qualify as Resisting Arrest. The Pumphrey
                                          18
defendant used a level of force against the officers that was more than a mere

defensive, non-cooperative effort to evade arrest.

      Second, as Chief Justice Jones pointed out in his dissenting opinion in the

case at bar, categorizing this pulling behavior as Resisting Arrest would blur the

line of demarcation between acts of force directed against the broader goal of

effectuating an arrest (i.e., force that does not qualify as Resisting Arrest) and acts

of force directed against the actual officer (i.e., force that qualifies as Resisting

Arrest). See Finley, 449 S.W.3d at 152. Chief Justice Jones explained:

      Questions persist. For example, what does “in opposition to” mean? In
      its broadest sense, this phrase could include opposition to the officer’s
      “broader goal of effectuating an arrest.” If the phrase means less than
      that, how are the boundaries of that standard to be determined? Is the
      line of demarcation when the arrestee comes “in contact with the
      officer himself”? But if that is the defining threshold, does it include
      contact initiated by the officer?
                                                                            Id.

      Once contact is initiated by an officer, how can a person use force to resist

the broader goal of effectuating an arrest unless that person pulls away? The

Legislature intended to permit this type of evasive behavior in certain

circumstances, as Evading Arrest is a criminal offense only if the State proves that

the person was being lawfully arrested. See TEX. P. CODE §38.04(a).

      In dismissing the toward/away distinction as requiring an overly

“metaphysical” analysis, the Pumphrey court erred by refusing to consider an

                                          19
important element of the analysis: whether the alleged force endangers the

arresting officer. See 245 S.W.3d at 90 n.5. In enacting the Evading and Resisting

statutes, the Legislature clearly created a demarcation between defensive and

offensive force. When a person’s conduct in avoiding an arrest is defensive in

nature (i.e., Evading), the conduct is not criminal if the arrest was unlawful.

Meanwhile, when the person’s conduct in avoiding an arrest becomes offensive

(i.e., Resisting), the conduct is criminal regardless of the lawfulness of the arrest.

An offensive/defensive distinction accords with Legislative intent because

offensive conduct against an arresting officer is more likely to directly endanger

that officer, while defensive efforts to avoid the arresting officer do not pose a

direct danger. Moreover, this distinction between offensive and defensive force

avoids the directional problems associated with the toward/away distinction that

the Pumphrey court criticizes. See id. at 91. Also, employing this

offensive/defensive distinction would not alter the results of the cited cases,

including Pumphrey.

      Moreover, Presiding Judge Keller’s dissent (joined by Judge Meyers) in

Thompson v. State demonstrates that the Finley majority should not have read so

much into the Dobbs’ opinion’s dicta regarding evidence of “pulling away” being

sufficient to support a Resisting Arrest conviction:


                                         20
       [T]he Court of Appeals appears to have misconstrued a statute,
       namely Texas Penal Code § 38.03…Under the Court of Appeals’
       interpretation, it would appear that an accused “uses force against a
       peace officer” even though the accused’s action merely consists of
       refusing to yield to a peace officer’s use of force against the accused.
       That interpretation seems questionable, and in my mind, appears to
       confuse which actor is actually using force. I am skeptical of the
       proposition that the mere resistance to force necessarily constitutes the
       actual use of force. The practice commentary to § 38.03, which we
       quoted in Washington, appears to require more: “The section applies
       only to resistance by the use of force. One who runs away or makes an
       effort to shake off the officer’s detaining grip may be guilty of
       evading arrest under § 38.04, but he is not responsible under this
       section.” Washington, 525 S.W.2d at 190 (quoting practice
       commentary).
               Thompson v. State, 987 S.W.2d 64, 65 (Tex. Crim. App. 1999)
            (Keller, J., dissenting from refusal of PDR) (emphasis in original)

Considering that the Dobbs holding did not hinge on whether a “forceful pulling

away” constitutes sufficient force to violate the Resisting Arrest statute, the court

of appeals’ majority opinion in the present case placed too much weight on the

dicta to this effect.

       In conclusion, this Court should hold that the mere act of pulling away from

an officer does not qualify as Resisting Arrest when there is no evidence that the

defendant directed any offensive force against the arresting officer.

              B. Viewing the evidence in the light most favorable to the verdict,
                 Appellant’s non-cooperative conduct cannot be deemed
                 Resisting Arrest because there was no evidence that he used
                 force against the officers.



                                          21
      The evidence at trial was unequivocal that Appellant did not use force

against the arresting officers. Instead, Appellant defensively attempted to avoid an

unlawful arrest for Hindering Apprehension, which he was entitled to do under the

Evading Arrest statute. See TEX. P. CODE §38.04.

      Officer Fuller testified that Appellant did not use any force directly against

the officers. RR II 65. She characterized Appellant’s use of “force” as his conduct

in preventing Officer Connor from pulling his arm behind his back. RR II 72.

      Officer Connor testified that Appellant’s use of force was his conduct in

“actively pulling away and trying to get away from us.” RR II 118. Connor

confirmed that Appellant did not hit him with his hands, slam against him with his

body, or kick at him. RR II 138. Connor also unequivocally testified that he took

Appellant to the ground. RR II 118, 124. Unlike Bryant v. State, there was no

evidence that Appellant made any forceful movement that caused the officer and

him to fall to the ground. See 923 S.W.2d at 206.

      Officer Connor’s Probable Cause Affidavit further revealed that the Leander

Police Department misunderstood the law, as he stated that the following conduct

constituted the requisite force for a Resisting Arrest charge: (1) Appellant tensing

up his body, (2) Appellant refusing to put his hands behind his back, and (3)

Appellant attempting to keep his hands underneath his body while he was on the

ground. RR II 134, CR 6. The following testimony by Officer Connor encapsulates
                                        22
the State’s improper theory of guilt: “By not allowing me to place him in

handcuffs, I would say that he was using force to resist me.” RR II 139.

       The State’s only other witness to the alleged incident of Resisting Arrest was

Officer Rollins.5 Rollins testified that the alleged force by Appellant did not

endanger him. RR II 162. Appellant never lashed out at any of the officers, and he

did not attempt to kick or hit the officers in any way. RR II 163, 165. In fact,

Rollins testified that Appellant never used force against the officers at all. RR II

167.

       Appellant’s conduct conformed exactly to the Legislature’s intent in creating

a defense for evading an unlawful arrest. Here, the State proceeded on a baseless

charge of Hindering Apprehension. See TEX. P. CODE §38.05. Specifically, the

State alleged that Appellant harbored or concealed Dennis Boyd with intent to

hinder Boyd’s arrest. RR II 7. The trial court properly acquitted Appellant on this

charge, as there was neither evidence of an intent to hinder Boyd’s arrest nor

evidence of the alleged conduct of harboring or concealing. RR IV 5-6. Rather, the

evidence was unequivocal that Appellant woke up Boyd, showed him a copy of the

warrant, and informed him that he should get ready. RR II 178, 214-15; RR III 17,

21. The video of the incident confirms that Appellant told the officers that he


5
 Corporal John Lauden testified that he did not witness the conduct giving rise to this charge.
RR II 88.
                                              23
would inform Boyd about the warrant. RR V St.Ex.1 (Lauden, 8:49:06-8:49:11). In

fact, Boyd came to the door soon after the outdoor commotion began, and he was

arrested within a minute or two afterward. RR II 33. Because there was no basis for

the Hindering Apprehension charge, Appellant had a right to evade Officer

Connor’s attempt to unlawfully arrest him for Hindering Apprehension. Of course,

Appellant’s attempt to flee was unsuccessful due to him being surrounded by

officers on a confined porch where there was nowhere to retreat.6 RR II 124, 160;

RR III 28.

      Because there was not one scintilla of evidence that Appellant used force

against the arresting officers, no rational trier of fact could have found Appellant

guilty of Resisting Arrest. As a result, the State’s evidence was insufficient to

establish that Appellant committed this offense.


                                       PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court

sustain his point of error, reverse the court of appeals’ decision affirming the trial

court’s judgment of conviction, and render a judgment acquitting Appellant of

Resisting Arrest.




6
  Even assuming a lawful arrest, Appellant’s conduct would not constitute Resisting Arrest
because he did not use force against the arresting officers.
                                           24
                                                    Respectfully submitted,

                                                    /s/ Christopher M. Perri______
                                                    CHRISTOPHER M. PERRI
                                                    Chris Perri Law
                                                    1504 West Ave.
                                                    Austin, Texas 78701
                                                    Tel. (512) 917-4378
                                                    Fax (512) 474-8252
                                                    chris@chrisperrilaw.com
                                                    State Bar No. 24047769
                                                    COUNSEL FOR APPELLANT


                           CERTIFICATE OF SERVICE


        I hereby certify that a true and correct copy of the foregoing Petition for

Discretionary Review was electronically transmitted to the following counsel of

record for Appellee, via the electronic filing manager, on this the 15th day of April,

2015.

        James LaMarca
        Assistant Williamson County Attorney
        405 M.L.K., Suite 240
        Georgetown, Texas 78626
        jlamarca@wilco.org

        Lisa McMinn
        State Prosecuting Attorney
        P.O. Box 13046
        Capitol Station
        Austin, Texas 78711
        information@spa.texas.gov
                                                    /s/ Christopher M. Perri______
                                                    Christopher M. Perri

                                         25
                        CERTIFICATE OF COMPLIANCE


      This is to certify that the above Appellant’s Brief on the Merits complies

with the length requirements of TEX. R. APP. PROC. 9.4(i)(2)(B) because it contains

6,004 words, not including the parts of the Brief that are excepted under TEX. R.

APP. PROC. 9.4(i)(1).

                                                   /s/ Christopher M. Perri______
                                                   Christopher M. Perri




                                        26
