Affirmed and Memorandum Opinion filed May 14, 2015.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-14-00533-CR

                         ATHALY HENRY, Appellant

                                        V.
                      THE STATE OF TEXAS, Appellee

                On Appeal from the County Court at Law No. 3
                           Jefferson County, Texas
                       Trial Court Cause No. 300445

                      MEMORANDUM OPINION

      In this appeal from a conviction for resisting arrest, the only question is
whether the evidence is legally and factually sufficient to support the conviction.
We conclude that the evidence is sufficient and we affirm the trial court’s
judgment.
                                     BACKGROUND

       The jury heard two competing versions of the events. The first version came
from the arresting officer, who testified that he was dispatched to a residence
following complaints of loud music. When the officer arrived at the residence, he
found appellant sitting in his truck, listening to reggae. The officer asked appellant
to turn the music off because it was loud and neighbors were trying to sleep.
Appellant dismissed the officer, proclaiming that he had a right to listen to music
because “this is America.”

       Appellant eventually exited his vehicle to head inside his garage, but he
refused to turn off his music. The officer gave appellant a clear verbal command to
stop, but appellant did not listen. The officer then attempted to arrest appellant for
disorderly conduct.

       When the officer grabbed appellant’s arm to effect the arrest, appellant
jerked away. The officer reached for the collar of appellant’s shirt, but appellant
jerked away again and began to spin around. The officer then bear-hugged
appellant to maintain control of him, but appellant continued to twist and “flail”
about. During their struggle, appellant and the officer knocked over shelves in
appellant’s garage.

       The officer told appellant several times to stop resisting, but appellant
continued to fight back. The officer called for backup and then forced appellant to
the ground. The officer placed a handcuff around one of appellant’s wrists, but
appellant jerked his arms free and started swinging them around with the handcuffs
partially attached. The officer was finally able to subdue appellant before backup
arrived. The officer suffered a minor injury during the incident, a scratch to his
right hand that later left a scar.


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       Appellant disputed the officer’s testimony. He testified that he was not
sitting in his truck listening to music. He claimed that the truck was inoperable,
that its transmission had been removed, and that the stereo could not play music
because there was no power.

       Appellant claimed that he was cleaning a part in his garage when the officer
arrived at his property. Appellant opined that the officer arrested him under the
mistaken belief that he was connected with another crime down the street.
Appellant denied that he ever resisted arrest.

                                    ANALYSIS

       To obtain a conviction for resisting arrest, the State was required to prove
that appellant intentionally prevented or obstructed a person he knew to be a peace
officer from effecting an arrest by using force against the peace officer. See Tex.
Penal Code § 38.03. Appellant contends that “the evidence was nonexistent with
regard to the fact that [he] actually committed any act that constituted resisting
arrest.”

       We review factual sufficiency challenges under the same standard for legal
sufficiency challenges. See Griego v. State, 337 S.W.3d 902, 903 (Tex. Crim. App.
2011) (per curiam). When reviewing the legal sufficiency of the evidence, we
examine all of the evidence in the light most favorable to the verdict and determine
whether a rational trier of fact could have found the essential elements of the
offense beyond a reasonable doubt. See Temple v. State, 390 S.W.3d 341, 360
(Tex. Crim. App. 2013). The evidence is insufficient when the record contains no
evidence, or merely a “modicum” of evidence, probative of an element of the
offense. See Garcia v. State, 367 S.W.3d 683, 687 (Tex. Crim. App. 2012).




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      Although we consider everything presented at trial, we do not reevaluate the
weight and credibility of the evidence or substitute our judgment for that of the fact
finder. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
Because the jury is the sole judge of the credibility of witnesses and of the weight
given to their testimony, any conflicts or inconsistencies in the evidence are
resolved in favor of the verdict. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.
Crim. App. 2000). Our review includes both properly and improperly admitted
evidence. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We
also consider both direct and circumstantial evidence, as well as any reasonable
inferences that may be drawn from the evidence. Id. Circumstantial evidence is as
probative as direct evidence in establishing the guilt of an actor, and circumstantial
evidence alone can be sufficient to establish guilt. See Hooper v. State, 214 S.W.3d
9, 13 (Tex. Crim. App. 2007).

      The record shows that the officer arrived at appellant’s residence in a
marked patrol car. The officer was also dressed in uniform and he identified
himself as an officer. Thus, the jury could have reasonably found that appellant
knew the officer was a peace officer.

      To show that appellant used force in resisting arrest, the State had to prove
that appellant used “violence or physical aggression, or an immediate threat
thereof, in the direction of and/or into contact with, or in opposition or hostility to,
a peace officer.” See Dobbs v. State, 434 S.W.3d 166, 171 (Tex. Crim. App. 2014).
The jury heard sufficient evidence to make such a finding. The record shows that
the officer grabbed at appellant’s arm and collar, and that appellant jerked away in
both instances. When the officer wrapped his arms around appellant in a bear hug,
appellant still continued to twist and spin about, trying to break free.



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         The same behavior persisted when appellant was forced to the ground. The
officer testified that he tried to place handcuffs on appellant, but appellant jerked
his hands away and flailed them about when the handcuffs were still partially
attached. The officer was scratched sometime during the struggle. Based on this
testimony, the jury could have reasonably found that appellant used force in
opposition to the officer as the officer was effecting an arrest. The jury could have
also found that appellant acted intentionally because the officer gave several verbal
commands to stop resisting, and appellant refused to obey. See Smith v. State, 965
S.W.2d 509, 518 (Tex. Crim. App. 1998) (providing that intent may be inferred
from the surrounding circumstances).

         Viewing the evidence in the light most favorable to the verdict, we conclude
that the jury could have found every element of the offense beyond a reasonable
doubt.

                                    CONCLUSION

         The judgment of the trial court is affirmed.




                                         /s/       Tracy Christopher
                                                   Justice



Panel consists of Justices Christopher, Donovan, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).




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