                                                                                        ACCEPTED
                                                                                   06-14-00139-CR
                                                                         SIXTH COURT OF APPEALS
                                                                              TEXARKANA, TEXAS
                                                                              1/20/2015 9:36:05 PM
                                                                                   DEBBIE AUTREY
                                                                                            CLERK

                           NO. 06-14-00139-CR

____________________________________________________________
                                                  FILED IN
                                                        6th COURT OF APPEALS
                                                          TEXARKANA, TEXAS
             IN THE COURT OF APPEALS SIXTH          DISTRICT
                                                        1/23/2015 1:35:00 PM
                                                            DEBBIE AUTREY
                        AT TEXARKANA, TEXAS                     Clerk


____________________________________________________________

                   DONNY JOE CURRY, APPELLANT

                                    V.

                   THE STATE OF TEXAS, APPELLEE

____________________________________________________________

                APPEAL IN CAUSE NUMBER CR1301508

             IN THE COUNTY COURT AT LAW NUMBER 1

                       OF HUNT COUNTY, TEXAS

____________________________________________________________

                    BRIEF FOR APPELLANT
____________________________________________________________

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

     Comes now the Appellant and submits this brief pursuant to the

provisions of the Texas Rules of Appellate Procedure in support of his

request for the judgment of conviction to be overturned in Cause No.

CR1301508.

                                         Appellant Requests Oral Argument
                 IDENTITY OF PARTIES AND COUNSEL

Appellant’s Attorney:
Jason A. Duff
2615 Lee Street
P.O. Box 11
Greenville, Texas 75403-0011

Appellant’s Trial Attorney:
Toby Wilkinson
P.O. Box 851266
Mesquite, Texas 75149

Appellee:
The State of Texas by and through
Joel Littlefield
Hunt County Attorney
4th Floor Hunt County Courthouse
2500 Lee Street
Greenville, Texas 75401

Appellee’s Trial Counsel:
DISTRICT ATTORNEY OF COLLIN COUNTY
BY: MR. JACKSON DAVID 'JACKSON MCMINN' MCMINN
2100 BLOOMDALE ROAD
MCKINNEY, TX 75071
SUITE 100




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                                    TABLE OF CONTENTS



Identity of the Parties and Counsel ............................................................. 2

Table of Contents ....................................................................................... 3

Index of Authorities ..................................................................................... 4

Statement of the Case ................................................................................ 6

Issues Presented ........................................................................................ 7

Statement of the Facts ................................................................................ 8

Summary of the Argument ........................................................................ 10

Argument and Authorities ......................................................................... 11

        Issue Number One ......................................................................... 11
        The evidence is legally insufficient to prove beyond reasonable
        doubt, that Curry Resisting Arrest.

Prayer for relief ........................................................................................ 17

Certificate of compliance of typeface and Word Count ............................. 18

Certificate of Service ................................................................................. 19




                                                                                                           3
                                     INDEX OF AUTHORITIES

FEDERAL CASES:

Jackson v. Virginia, 443 U.S. 307. ............................................................ 11

STATE CASES:

Alexander v. State, 740 S.W.2d 749, 758 (Tex. Crim. App. 1987)............. 12

Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994) ................. 12

Cordova v. State, 698 S.W.2d 107 (Tex. Crim. App. 1985) ……….……...12

Hooper v. State, 214 S.W.3d 9, 13, 15-17 (Tex. Crim. App. 2007) ............ 12

Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993) ............... 12

Laster v. State, 275 S.W. 3d 512 (Tex. Crim. App. 2009) ......................... 11

Navarro v.State, 810 S.W.2d 432, 435 (Tex. App.—San Antonio 1991, pet.

refd) .......................................................................................................... 16

Pumphrey v. State, 245 S.W. 3d 85 (Tex. App. Texarkana 2008) ............. 13

Reedy v. State, 214 S.W. 3d 567 (Tex. App.—Austin 2006) ..................... 16

Sheehan v. State, 201 S.W. 3d 820 (Tex. App. Waco 2006, no pet.) ........ 14

Shelton v. State, 795 S.W.2d 162, 167 (Tex.Crim.App.1989) ................... 16

Urbano v. State, 837 S.W.2d 114, 116 (Tex.Crim.App. 1992) ................... 16

Vodochodsky v. State, 158 S.W. 3d 502, (Tex. Crim. App. 2005) ............. 11

Washington v. State 127 S.W. 3d 197 (Tex. App. Houston [1st Dist.] 2003,

pet. dism’d) ............................................................................................... 11



                                                                                                                 4
STATE STATUTES:

TEX PENAL CODE ANN. § 6.03(a) & (b) (West 2011) ............................ 15

TEX PENAL CODE ANN. § . §38.03(a) (Casemaker 2014) ..................... 12




                                                                             5
                       STATEMENT OF THE CASE



     This is an appeal of the judgment and sentence in a criminal case for

the County Court at Law No. 1, in Hunt County, Texas. Appellant was

convicted by the trial court of Resisting Arrest in CR1301508.

      Appellant was assessed a sentence of 275 days, in the Hunt County

Jail. Notice of appeal was given on August 1, 2014. The clerk's record

was filed on October 1, 2014; the reporter's record was filed on November

3, 2014.




                                                                            6
                        ISSUE PRESENTED


Issue One:     The evidence is legally insufficient to prove beyond
     reasonable doubt, that Curry committed the offense of Resisting
     Arrest.




                                                                   7
                       STATEMENT OF THE FACTS


      On March 1, 2013, Donny Joe Curry (Appellant) was stopped by

Officer Samantha Marique in Commerce, Texas. (RR Vol. 9 p. 63).

Marique testified at trial that while on a routine patrol she notice a blue

vehicle with no rear license plate. Marique further testified that when she

confronted Appellant he state that he had no driver’s license and no

insurance. (RR Vol. 9. 63). Later, Marique simply states that Appellant only

gave her the name of Donny and that there was no registration insignia on

the front of the windshield. (RR Vol. 9. 67).

      Marique felt that she needed back up to deal with appellant so she

called for the help of Officers Pehl and Scott. During that time Appellant

waited in his vehicle. When Pehl and Scott arrived, Marique briefly

explained why she had pulled Appellant over. Pehl immediately opened

the Appellant’s door ordered him to exit and used a Taser on Appellant.

Marnique stated that while being Tased, Appellant held on to the steering

wheel. (RR Vol. 9. 69). After Appellant screamed in pain from the Taser,

and requested of Pehl to follow the law, Pehl removed Appellant from the

vehicle. As officer Pehl removed Appellant from the car Appellant held his

arms up in the air and away from officer Pehl. Officer Pehl then put hand

cuffs on Appellant, guided Appellant to the hood of Marnique’s car and then

                                                                              8
escorted Appellant off camera. (State’s Exhibit 3, 8:30- 11:30). Marique

testified that the officers found Appellant’s Social Security Card and driver’s

license. (RR Vol. 9. 81).




                                                                              9
                      SUMMARY OF THE ARGUMENT

Issue One:     The evidence is legally insufficient to prove beyond
reasonable doubt, that Curry committed Resisting Arrest

      The evidence presented at trial could not have led a rational trial

court to find that Curry acted with a conscious objective or desire to

intentionally prevented or obstructed a peace officer or person acting in a

peace officers’ presence and at his direction from effecting an arrest,

search of Appellant by using force against the peace officer or another, or

that he was aware that her conduct was reasonably certain to cause that

result.

      Concluding so, based on the evidence presented at trial, would have

been speculation or suspicion by the factfinder. Thus, the evidence is

legally insufficient to convict Curry in this case.




                                                                              10
                                 ARGUMENT


       Issue One: The evidence is legally insufficient to support

                        the conviction of Appellant

      In a criminal case, an appellant may raise legal sufficiency for the first

time on appeal. Washington v. State 127 S.W. 3d 197 (Tex. App. Houston

[1st Dist.] 2003, pet. dism’d). When reviewing legal sufficiency of the

evidence, a court must look at 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 were proven beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319; Vodochodsky v.

State, 158 S.W. 3d 502, (Tex. Crim. App. 2005). While giving the proper

deference to the factfinder’s role this court must safeguard against the rare

occurrence when a factfinder does not act rationally. Laster v. State, 275

S.W. 3d 512 (Tex. Crim. App. 2009).

      In this case Appellant was charged with Resisting Arrest. (CR Vol.

1pps 16, & 17). To support a conviction of the appellant, the State must

prove beyond a reasonable doubt that Appellant intentionally prevented or

obstructed a person he knows is a peace officer or person acting in a

peace officers’ presence and at his direction from effecting an arrest,

search or transportation of the actor or another by using force against the

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peace officer or another. TEX. PEN. CODE ANN. §38.03(a) (Casemaker

2014).

      In reviewing the sufficiency of the evidence, courts should look at

“events occurring before, during and after the commission of the offense

and may rely on actions of the defendant which show an understanding

and common design to do the prohibited act.” Cordova v. State, 698

S.W.2d 107, 111 (Tex. Crim. App. 1985). Each 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. See Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App.

1993) (“[i]t is not necessary that every fact point directly and independently

to the defendant’s guilt; it is enough if the conclusion is warranted by the

combined and cumulative force of all the incriminating circumstances.”);

Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994).; Alexander

v. State, 740 S.W.2d 749, 758 (Tex. Crim. App. 1987).

      [C]ourts of appeal should adhere to the Jackson standard and

determine whether the necessary inferences are reasonable based upon

the combined and cumulative force of all the evidence when viewed in the

light most favorable to the verdict. Hooper v. State, 214 S.W.3d 9, 13, 15-

17 (Tex. Crim. App. 2007).



                                                                               12
            This Court examined sufficiency of the evidence in resisting

arrest in Pumphrey v. State. Pumphrey v. State, 245 S.W. 3d 85 (Tex.

App. Texarkana 2008). Yet, the facts in this case do not demonstrate near

the same level of conduct by the defendant in Pumphrey or the cases cited

and rejected therein.

      In Pumphrey, evidence brought at trial demonstrated that the

defendant Pumphrey, while waiting to enter a dance at her university, got

into a verbal confrontation with a campus police officer Id. at 87. The

officer in that case then grasped the defendant and attempted to take

Pumphrey into custody for disorderly conduct. Pumphery jerked, squirmed,

twisted, turned and struggled all against the efforts of the campus police

officer’s efforts to physically restrain her in the process of making the

arrest. Id. at 92. This Court found that those actions sufficiently supported

Pumphery’s conviction. Id.

      The video in this case depicts officer Pehl approaching Appellant and

then using his Taser within seconds. The video further depicts Appellant

submitting to the direction of the officer without any clear display of force in

any direction opposite to the Officer. (State’s Exhibit 3). Applying Cardova

cited above, courts must look at events occurring before, during and after

the commission of the offence. When Cardova is applied, Curry did not



                                                                              13
resist the arrest. In the context of these earlier actions of Curry contrasted

against cases such as Pumphery, this case does not elevate to resisting

arrest.

      This Court rejected reasoning by other Courts that made a distinction

force or lack of force directed at the arresting officer. Id. at 91. However,

this case is more like the facts in Sheehan v. State, 201 S.W. 3d 820 (Tex.

App. Waco 2006, no pet.) which is not overtly rejected but cited in a

footnote of Pumphery. Pumphery at n.4. In Sheehan, the officers

approached the defendant in that case and informed him he needed to go

with them. When the officer in that case went to reach for the defendant’s

left arm, the defendant stood up and pulled his hands into his chest and

leaned away. The officers then grabbed him, brought him to the ground,

then got his hands behind his back, handcuffed him and walked him

outside. Id. at 821.

      Just like here, the physical contact in Pehl was so brief and limited

that it cannot sustain a conviction from resisting arrest. At no point before

Officer Pehl Tased Appellant and removed him from the car does Pehl or

other officer definitively indicate that Appellant is under arrest.

      Even giving full play to the responsibility of the fact finder to fairly

resolve conflicts in testimony, to weigh the evidence, and to draw



                                                                                 14
reasonable differences from basic facts to ultimate fact no rational fact

finder could have found that Curry effected resistance to the arrest.

      Here, the officer already had the Appellant in his grasp with no clear

opposing movement and in seconds the officer had brought to the

Appellant to the exterior of the vehicle and handcuffed him. Evidence

shows that at the end of the encounter Curry was moved off camera. There

is no other indication from the evidence at trial that after Curry was

handcuffed there was need for further restraint to prevent flight. (State’s

Exhibit 3). Again looking to the actions or events before, during and after

the commission of the offence the facts do not amount to resisting arrest.

Therefore the evidence brought at trial was insufficient and Curry’s

conviction should be overturned.

      Appellant Lacked The Necessary Intent

      Additionally, the state must prove that Appellant acted with a

conscious objective or desire to cause the result, or that he was aware that

his conduct was reasonably certain to cause the result. Tex. Penal Code

Ann. § 6.03(a) & (b) (West 2011).

      It is just as rational, if not more rational, that Appellants physical

actions were the result of the electrocution he suffered at the hands of

Officer Pehl’s Taser when he grabbed the steering wheel of the car.



                                                                               15
        Proof that amounts to only a strong suspicion of guilt or a mere

probability of guilt is insufficient to sustain a conviction. Urbano v. State,

837 S.W.2d 114, 116 (Tex.Crim.App. 1992); Navarro v.State, 810 S.W.2d

432, 435 (Tex. App.—San Antonio 1991, pet. refd).

        It is the function of appellate courts to ensure that no one is convicted

of a crime except upon proof beyond a reasonable doubt. Shelton v. State,

795 S.W.2d 162, 167 (Tex.Crim.App.1989). Due process requires no less.

Reedy v. State, 214 S.W. 3d 567 (Tex. App.—Austin 2006).

        In this case the trial court could only form a suspicion that Appellant

intended resist arrest when there was no clear indication to Appellant at the

time just before he was Tased, the officers were about to arrest him.

        The State did not prove beyond a reasonable doubt that Appellant

acted with a conscious objective or desire to resist arrest, or that he was

aware that his conduct was reasonably certain to cause the result in this

case.




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                           PRAYER FOR RELIEF

      Wherefore, premises considered, Appellant respectfully prays that his

conviction in the above entitled and numbered cause be reversed and

acquit him. Appellant further prays for all other lawful relief to which he

may be entitled, at law or in equity.

                                                 Respectfully submitted,




                                                 _____/s/ Jason A. Duff____
                                                 Jason A. Duff
                                                 State Bar No. 24059696
                                                 2615 Lee Street
                                                 P.O. Box 11
                                                 Greenville, TX 75403-0011
                                                 jasonaduff@hotmail.com
                                                 Attorney for the Appellant




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 CERTIFICATE OF COMPLIANCE OF TYPEFACE AND WORD COUNT

        In accordance with Texas Rules of Appellate Procedure 9.4 (e) and
(i), the undersigned attorney or record certifies that Appellants Brief
contains 14-point typeface of the body of the brief, 12-point typeface for
footnotes in the brief and contains 1,661words, excluding those words
identified as not being counted in appellate rule of procedure 9.4(i)(1), and
was prepared on Microsoft Word 2010.


_____/s/ Jason A. Duff____
Jason A. Duff
Attorney for the Appellant




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                       CERTIFICATE OF SERVICE

     I hereby certify that a true and correct copy of the above and

foregoing instrument was forwarded to Collin County District Attorney’s

Office, on this the 20th day of January, 2015 and to the Court of Appeals in

Texarkana via , by electronic delivery.




                                               _____/s/ Jason A. Duff____
                                                              Jason A. Duff
                                                  Attorney for the Appellant




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