Opinion issued February 14, 2013




                                   In The

                           Court of Appeals
                                   For The

                       First District of Texas
                       ————————————
                           NO. 01-11-01126-CR
                        ———————————
                   ATHA ALBERT DOBBS, Appellant
                                     V.
                    THE STATE OF TEXAS, Appellee



                  On Appeal from the 21st District Court
                       Washington County, Texas
                      Trial Court Case No. 15,911
                                   OPINION

      A jury found appellant Atha Albert Dobbs guilty of the offense of resisting

arrest. 1 To reach the guilty finding, the jury found that appellant had used a deadly

weapon, namely, a firearm, to resist arrest, thereby elevating the offense to a third-

degree felony. 2 The jury assessed appellant’s punishment at six years in prison and

an $8,000 fine.

      On appeal, appellant raises one issue. He contends that the evidence was not

sufficient to support the judgment of conviction.        Because we hold that the

evidence was sufficient, we affirm.

                              Background Summary

      Appellant lived with his wife, Dawn, and her daughters, S.M. and K.M. On

September 18, 2010, 16-year-old S.M. told Dawn that appellant had been sexually

abusing her for several years. Dawn and her two daughters moved out the next

day, leaving appellant alone at the house.

      Dawn contacted the Washington County Sherriff’s Department and reported

S.M.’s allegations of sexual abuse. A warrant was issued for appellant’s arrest for



1
      See TEX. PENAL CODE ANN. § 38.03(a) (Vernon 2011).
2
      See id. § 38.03(d); see also id. § 12.34 (Vernon 2011) (defining punishment range
      for third-degree felony offense).
                                          2
the offense of sexual assault of a child. Dawn told the sheriff’s office that she

believed appellant may resist arrest.

      Five sheriff’s deputies were dispatched to appellant’s house to arrest him.

Appellant was looking out his kitchen window when he saw the deputies

approaching the house. He went to his gun cabinet and retrieved a loaded pistol.

Two of the deputies went to the back of the house, two to the side, and one officer,

Deputy K. Kokemoor, went to the front door, which led into the kitchen.

      When he got to the door, Deputy Kokemoor could see inside the house. He

saw appellant walking straight toward the door. Appellant had a gun in his hand.

One of the other officers had also seen the pistol and yelled, “Gun!” Each of the

deputies pulled out his service weapon and aimed it at appellant.            Deputy

Kokemoor yelled at appellant, instructing him to put down the gun. Appellant did

not comply.

      Appellant walked to the door. He was pointing the gun at his own temple.

Deputy Kokemoor could not hear what appellant was saying, but it appeared to the

officer that appellant was mouthing words to the effect that he was intending to kill

himself. Deputy Kokemoor kept his gun trained on appellant but did not fire his

weapon.




                                         3
       Appellant then turned around and began walking to the interior of the house.

Deputy Kokemoor lowered his gun and pulled out his taser. Deputy Kokemoor

went into the house. Appellant turned and looked at Deputy Kokemoor. When

appellant began to run into the living room, Deputy Kokemoor shot appellant with

a taser.

       Appellant fell to the floor on to top of his gun. Deputy Kokemoor instructed

appellant to put his hands behind his back. Because appellant did not comply,

Deputy Kokemoor pulled the trigger on the taser a second time.                Deputy

Kokemoor kicked appellant’s gun away from him. The officer discovered that the

gun was loaded. It had a bullet in the chamber.

       The officers took appellant into custody. Appellant was charged with three

felony offenses: (1) continuous sexual abuse of a child under the age of 14 years;

(2) aggravated sexual assault; and (3) resisting arrest. With respect to the resisting

arrest charge, the State alleged that appellant had used a deadly weapon, namely, a

firearm, in resisting arrest, making the offense a third-degree felony.

       The State offered a number of witnesses at trial, including Dawn, S.M., and

Deputy Kokemoor. Appellant testified in his own defense.




                                          4
      The jury was unable to reach a unanimous verdict on the charged offenses of

continuous sexual abuse of a child and aggravated sexual assault. The trial court

declared a mistrial with respect to those two charges.

      The jury did find appellant guilty of the third-degree felony offense of

resisting arrest. Following the punishment phase, the jury assessed appellant’s

punishment at six years in prison and an $8,000 fine. This appeal followed.

                             Sufficiency of the Evidence

      In one issue, appellant contends that the evidence introduced at trial is

legally insufficient to support his conviction for the offense of resisting arrest.

A.    Standard of Review

      This Court reviews sufficiency-of-the-evidence challenges applying the

same standard of review, regardless of whether an appellant presents the challenge

as a legal or a factual sufficiency challenge. See Ervin v. State, 331 S.W.3d 49,

53–55 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (construing majority

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

standard of review is the standard enunciated in Jackson v. Virginia, 443 U.S. 307,

319, 99 S. Ct. 2781, 2789 (1979). See id. Pursuant to this standard, evidence is

insufficient to support a conviction if, considering all the record evidence in the

light most favorable to the verdict, no rational fact finder could have found that

                                           5
each essential element of the charged offense was proven beyond a reasonable

doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; In re Winship, 397 U.S.

358, 361, 90 S. Ct. 1068, 1071 (1970); Laster v. State, 275 S.W.3d 512, 517 (Tex.

Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

We can hold evidence to be insufficient under the Jackson standard in two

circumstances: (1) the record contains no evidence, or merely a “modicum” of

evidence, probative of an element of the offense, or (2) the evidence conclusively

establishes a reasonable doubt. See Jackson, 443 U.S. at 314, 318 n.11, 320, 99 S.

Ct. at 2786, 2789 n.11, 2789; see also Laster, 275 S.W.3d at 518; Williams, 235

S.W.3d at 750.

      The sufficiency-of-the-evidence standard gives full play to the responsibility

of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and

to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443

U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007). An appellate court presumes that the fact finder resolved any conflicts

in the evidence in favor of the verdict and defers to that resolution, provided that

the resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793.

      In viewing the record, direct and circumstantial evidence are treated equally;

circumstantial evidence is as probative as direct evidence in establishing the guilt

                                          6
of an actor, and circumstantial evidence alone can be sufficient to establish guilt.

Clayton, 235 S.W.3d at 778. Finally, “[e]ach fact need not point directly and

independently to the guilt of the appellant, as long as the cumulative force of all

the incriminating circumstances is sufficient to support the conviction.” Hooper v.

State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

B.    Elements of the Offense

      To convict an accused for resisting arrest, the State must prove (1) the

accused intentionally (2) prevented or obstructed (3) a person he knows is a peace

officer (4) from effecting an arrest (5) of himself or another (6) by using force

against the peace officer or another. See TEX. PENAL CODE § 38.03(a) (Vernon

2011). The offense of resisting arrest is elevated to a felony if the defendant uses a

deadly weapon to resist arrest. See id. § 38.03(d).

      The indictment in this case read, in part, as follows:

      [O]n or about the 22d day of September, A.D. 2010, [Atha Albert
      Dobbs] . . . did intentionally prevent or obstruct Kyle Kokemoor, a
      person the defendant knew to be a peace officer, from effecting an
      arrest of the defendant, and the defendant did then and there use a
      deadly weapon, to-wit: a firearm, to resist, prevent, or obstruct the
      arrest by exhibiting a firearm, against the peace and dignity of the
      State.




                                          7
C.    Analysis

      On appeal, appellant contends that the evidence is insufficient to support the

judgment of conviction because the State failed to prove that he “used force

against” Deputy Kokemoor, an element necessary to establish the offense of

resisting arrest. See id. § 38.03(a).

      Appellant asserts that “merely exhibiting a firearm” cannot constitute a use

of force against a peace officer. Under the unique circumstances of this case, we

disagree.

      Appellant testified that, after his wife told him that she had gone to the

police and reported the sexual assault allegations, he suspected that the police

would be coming to arrest him. Appellant acknowledged that he took a loaded

pistol from his gun cabinet in response to seeing the sheriff’s deputies in his

driveway.    He testified that he retrieved the gun because he was “scared.”

Appellant stated that he feared he would lose everything that he had worked so

hard in his life to obtain. He also testified that he did not have “the nerve” to shoot

himself.

      Deputy Kokemoor testified that, upon his arrival at the scene, he instructed

appellant to drop the gun, but appellant did not comply. Instead, with gun in hand,

appellant walked straight to the door where Deputy Kokemoor was standing and

                                          8
looked at the deputy. Appellant came close to the other side of the door and

looked at Deputy Kokemoor, who noted that appellant held the gun to his own

temple and “mouthed the words, ‘I’m going to kill myself.’” Deputy Kokemoor

testified that, at the time, he believed appellant was attempting “suicide by cop”;

that is, appellant wanted to force the officers to shoot him.

      When asked why he did not shoot appellant, Deputy Kokemoor testified that

he did not believe the gun was a threat; however, the deputy clarified that he

continued to keep his gun aimed at appellant and would have shot appellant had

appellant turned the gun toward him.

      Citing Deputy Kokemoor’s testimony, appellant contends that “at no point in

the testimony was there any recitation of a physical struggle or any use of force

applied by Appellant directed towards the officers during the arrest.” Appellant

also points out that he made no verbal threats to the officers.

      Appellant also relies heavily on Deputy Kokemoor’s testimony concerning

appellant’s actions of pointing the gun at his own temple. He emphasizes that

appellant did not, at any time, point the gun directly at the deputies. He further

relies on Deputy Kokemoor’s testimony that the deputy did not shoot appellant

because the deputy did not believe the gun was a threat. Appellant asserts that




                                           9
“merely exhibiting a firearm,” as alleged in the indictment, is not sufficient to

constitute use of force against a peace officer. 3

      The Penal Code does not define the phrase “using force against,” as found in

section 38.03(a); nor does it define those words individually.            As appellant

correctly points out, courts have held that passive noncooperation does not

constitute force against an officer. See Sheehan v. State, 201 S.W.3d 820, 822

(Tex. App.—Waco 2006, no pet.) (holding passive noncooperation of pulling arms

to chest and interlocking them posed no danger to arresting officers and did not

constitute use of force as element of resisting arrest); see also Pumphrey v. State,

245 S.W.3d 85, 89 n.4 (Tex. App.—Texarkana 2008, pet. ref’d) (describing “mere

passive resistance” or “simple noncooperation” as sitting with arms crossed,

crawling away, or the like).

      Nonetheless, an action, that, when viewed in isolation, may not rise to the

level of resisting arrest, may constitute the use of force in certain situations. See


3
      In his brief, appellant is critical of the language of the indictment. He intimates
      that the “exhibiting a firearm” language was inadequate to allege the offense of
      resisting arrest because the indictment failed to allege that he used force against
      the arresting officer. Appellant does not, however, formally raise this as an issue
      on appeal. Moreover, a defendant must object to a defect in form or substance in
      the indictment before trial or he waives the right to object on appeal. TEX. CODE
      CRIM. PROC. ANN. art. 1.14(b) (Vernon 2005). The record does not show that
      appellant objected to the indictment. Thus, appellant has waived his right to
      complain that the indictment inadequately alleged the elements of resisting arrest.
      See Gary v. State, 195 S.W.3d 339, 340 (Tex. App.—Waco 2006, no pet.).
                                           10
Gary v. State, 195 S.W.3d 339, 340 (Tex. App.—Waco 2006, no pet.). Courts

have held that a person can forcefully resist an arrest without successfully making

physical contact with the officer. See Sartain 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 defendant’s act of

“kicking at” an officer constituted force even though the kick did not connect). In

other cases, actions which endanger an officer may constitute “use of force

against.” See, e.g., Gary, 195 S.W.3d at 341 (holding that releasing a vicious dog

to attack an officer was use of force, even though dog never made contact with

officer). Acts threatening the officer with imminent bodily harm have also been

held to be use of force against the officer. See Campbell v. State, 128 S.W.3d 662,

671 (Tex. App.—Waco 2003, no pet.) (holding evidence showed use of force when

defendant had pulled gun from his pocket and yelled “get back”).

      Courts have made clear that section 38.03 does not require action directed at

or toward an officer; rather, it only requires force exerted in opposition to the

officer’s efforts at making an arrest. See Pumphrey, 245 S.W.3d 90–91; see

Hopper v. State, 86 S.W.3d 676, 679 (Tex. App.—El Paso 2002, no pet.) (reaching

conclusion that term “against” means “opposition to”). With respect to the term

“force,” courts have applied its common and ordinary meaning as defined in

                                        11
dictionaries. See Ex parte Rieck, 144 S.W.3d 510, 512 (Tex. Crim. App. 2004)

(explaining that, to determine plain meaning of word, courts look to dictionaries).

The Fort Worth Court of Appeals noted that Black’s Law Dictionary defines

“force” as “[p]ower dynamically considered, that is, in motion or in action;

constraining power, compulsion; strength directed to an end.” Haliburton, 80

S.W.3d at 313 (quoting BLACK’S LAW DICTIONARY 330 (5th ed. 1983)); see Rabe

v. State, No. 13–10–00419–CR, 2012 WL 2052147, at *3 (Tex. App.—Corpus

Christi June 7, 2012, no pet.) (mem. op.) (not designated for pub.) (noting that

Webster’s Dictionary defines “force” as “violence, compulsion, or constraint

exerted upon or against a person or thing”). Black’s Dictionary also defines force

to include both actual force and constructive force. See BLACK’S LAW DICTIONARY

656 (3d ed. 1990) (describing constructive force, in part, as “[t]hreats and

intimidation to gain control or prevent resistance”).

      Applying the principles set forth in the foregoing authorities, we conclude

that the evidence was sufficient to prove that appellant used force against Deputy

Kokemoor. In reaching this conclusion, we need not determine whether “merely

exhibiting a firearm” would be sufficient to support a conviction for resisting

arrest. The totality of appellant’s actions went beyond merely exhibiting a firearm.




                                         12
Appellant’s act of exhibiting the gun was accompanied by other conduct that,

within the context of the officers’ effectuating the arrest, constituted force.

      To reiterate, appellant retrieved a gun in direct response to the officers’

arrival to arrest him for the offense of sexual assault of a child.           Appellant

displayed the gun as he walked toward Deputy Kokemoor. Appellant indicated his

awareness of Deputy Kokemoor by looking at him. Appellant refused to put the

gun down despite being instructed to do so. Appellant continued walking until he

was close to Deputy Kokemoor on the other side of the door. The officers could

not arrest appellant because he would not voluntarily relinquish the gun. Appellant

dropped the gun, and the officers were able to effectuate the arrest, only after

appellant had been tasered twice.

      As appellant points out, Deputy Kokemoor testified that he did not shoot

appellant with his firearm because he did not feel threatened by appellant’s gun.

Nonetheless, Deputy Kokemoor further testified that he felt compelled to keep his

gun trained on appellant. He stated that, at the time, he believed it was a “suicide

by cop” situation. The jury could have reasonably inferred that both appellant and

Deputy Kokemoor knew that it would take minimal effort for appellant to turn the

gun toward Deputy Kokemoor and for it to become a lethal situation. See Obigbo

v. State, 6 S.W.3d 299, 306 (Tex. App.—Dallas 1999, no pet.) (explaining that

                                          13
“jurors [are] free to use their common sense and apply common knowledge,

observation, and experience gained in the ordinary affairs of life when giving

effect to the inferences that may reasonably be drawn from the evidence”).

      Viewed objectively, the evidence supports an inference that appellant’s

conduct was “in opposition” to the officers’ effectuating his arrest. An officer

cannot effectuate an arrest when the person to be arrested is holding a gun and

refusing to surrender it. Even when a suspect is not pointing the gun directly at the

officer, the situation is a volatile one with life and death consequences. The

officer’s testimony indicated that he believed it necessary to taser appellant to

subdue him and to effectuate the arrest. Until that point, appellant was using his

gun to intimidate the officers and to control the situation.

      The jury could have reasonably inferred that appellant knew the officers

would not approach him while he was holding the gun. Such conduct is designed

to oppose the officer’s ability to complete the arrest. Thus, the jury could have

found that his conduct was “against” the officer. See Pumphrey, 245 S.W.3d 90–

91; Hopper, 86 S.W.3d at 679.

      Significantly, although section 38.03(a) requires force, nothing in the statute

requires that the force exerted against the officer be violent or make physical

contact with the officer.      The commonly understood definition of “force”

                                          14
encompasses acts of compulsion or coercion unaccompanied by actual acts of

physical violence.    See Haliburton, 80 S.W.3d at 313 (adopting definition of

“force” that includes “compulsion”).

       Here, the jury could have inferred that appellant’s conduct created a volatile

and provocative situation, placing all involved in danger of imminent bodily harm.

In creating such a situation, appellant’s conduct was an effective means to repel the

arrest. The jury could have found that appellant’s acts were acts of compulsion

and coercion designed to prevent the arrest by inducing Deputy Kokemoor into

fearing for his own personal safety and for the safety of the other officers. Such an

act of compulsion and coercion in opposition to the officers’ effectuating the arrest

is an act of force.

       Viewing all the evidence, direct and circumstantial, in the light most

favorable to the jury verdict, we conclude that a rational fact finder could have

found, beyond a reasonable doubt, the essential element of use of force to support

its finding that appellant was guilty of the offense of resisting arrest. See Jackson,

443 U.S. at 319, 99 S. Ct. at 2789. We hold that the evidence is sufficient to

support the judgment of conviction.

       We overrule appellant’s sole issue.




                                         15
                                    Conclusion

      We affirm the judgment of the trial court.




                                             Laura Carter Higley
                                             Justice


Panel consists of Justices Jennings, Higley, and Sharp.

Justice Sharp, dissenting.

Publish. TEX. R. APP. P. 47.2(b).




                                        16
