      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-08-00400-CR
                                       NO. 03-08-00401-CR



                                     Cindy Martin, Appellant

                                                  v.

                                   The State of Texas, Appellee


            FROM THE COUNTY COURT AT LAW NO. 2 OF BELL COUNTY
   NOS. 2C05-08069 & 2C05-08070, HONORABLE JOHN MISCHTIAN, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant Cindy Martin appeals her convictions in a joint trial for resisting arrest

and interfering with a peace officer’s performance of a duty. See Tex. Penal Code Ann. § 38.03

(West 2003), § 38.15 (West Supp. 2008). After the jury found appellant guilty of both offenses, the

trial court assessed punishment at sixty days in the county jail and a fine of $100.00 in each case.

The sentences are to run concurrently.


                                       POINTS OF ERROR

               In her first point of error appellant challenges both the legal and factual sufficiency

of the evidence to sustain the conviction for resisting arrest. Likewise, in point of error two,

appellant challenges in a single point the legal and factual sufficiency of the evidence to sustain the
conviction for interfering with a police officer’s performance of his duty. These should have been

more properly four points of error instead of two.1


                                         BACKGROUND

               At appellant’s joint trial on May 27-29, 2008, Belton Police Officer Jerome Simpson,

Jr. testified that he was on patrol on September 14, 2005. He was in police uniform with a

badge and was driving a marked black and white police vehicle. Shortly after 1 a.m. that morning,

Officer Simpson observed a vehicle that appeared to be speeding about 40 m.p.h. in a posted

30 m.p.h. area. Officer Simpson began to follow the vehicle but its speed did not change.

Officer Simpson decided to stop the vehicle when it turned onto Sparks Avenue. He activated

his police vehicle’s overhead flashing lights. The suspect vehicle seemed to accelerate its speed.

Officer Simpson then “hit the siren,” and notified the dispatcher that he had a suspect vehicle that

would not stop. That vehicle suddenly pulled into a driveway at 205 Burnet Road. Officer Simpson

believed that the driver would “bail out and run.” The officer decided to make a “felony stop,”




       1
           This is so because it has been established that a factual sufficiency review begins with the
assumption or presumption that the evidence supporting the jury’s verdict is legally sufficient.
Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996) (citing Stone v. State, 823 S.W.2d
375, 381 (Tex. App.—Austin 1995, pet. ref’d, untimely filed)); Key v. State, 88 S.W.3d 672, 677
(Tex. App.—Tyler 2002, pet. ref’d). Each of these claims may be raised independently as a
sole point of error on direct appeal. If both claims are raised and the appellate court finds that
the evidence is legally insufficient, the factual sufficiency claim is not addressed. Carney v. State,
31 S.W.3d 392, 398-99 (Tex. App.—Austin 2000, no pet.). Moreover, the standards for review
for legal and factual sufficiency claims are different and must be carefully applied to the proper
claim. Only recently, the Texas Court of Criminal Appeals observed that a legal sufficiency review
is a due process requirement, while a factual sufficiency review is a creature of state law. Lasiter
v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009) (citing Watson v. State, 204 S.W.3d 404, 406
(Tex. Crim. App. 2006)).

                                                  2
meaning to “take the driver down at gunpoint.” He believed that other police units were nearby. He

parked his police vehicle on the street near the driveway with its flashing overhead lights

still activated. Officer Simpson drew his pistol and approached the suspect vehicle in the driveway.

It was dark so he used his flashlight “to see what was going on.” Officer Simpson ordered the driver,

later identified as Barrett Brett Gunn, out of the car and onto the ground.2 Gunn appeared intoxicated

to Officer Simpson who quizzed him as to why he did not stop earlier. Gunn replied that he was

just trying to get to “that house” referring to 205 Burnet. Before Officer Simpson could “pat down”

Gunn, he became aware that there were two small children in Gunn’s car. While Gunn was on

the ground being held at gunpoint, an SUV or truck suddenly pulled into the driveway passing

between the police vehicle and the Gunn car and then stopped. It caught the officer by surprise and

distracted him.

                  A woman, later identified as appellant, aggressively got out of the SUV about

fifty feet from Officer Simpson. He testified that he believed appellant moved in his direction, but

she may not have. Officer Simpson told appellant to stop and “ma’am, stay there.” He reported that

appellant began cursing and stated that she was on her own property and would do what she wanted.

Officer Simpson told appellant not to leave the area, but she turned in the opposite direction and

moved toward the house.

                  From the porch light, Officer Simpson was able to recognize appellant as a woman

with whom he had contact at that same address a year or so earlier. He explained that he and other


       2
          It appears from the record that the police vehicle’s video had run out of tape or film, and
that Officer Simpson’s microphone was being charged in the police vehicle. Officer Simpson did
not use his collar mic or microphone as it was to be used only in extreme emergencies.

                                                  3
officers made a disturbance call at 205 Burnet but the report turned out to be unfounded. When

leaving the premises on this earlier occasion, appellant told Officer Simpson that if he ever came

on her property again she would shoot him. He saw a pistol and possibly a rifle in the house at

the time.3 When appellant moved toward the house on the occasion in question, Officer Simpson

believed that she might attempt to secure weapons as he suspected that appellant had some

connection with Gunn. He again told appellant “to stop,” and when she continued her walk, he left

Gunn on the ground,4 holstered his pistol, and started after appellant, telling her that she was under

arrest for interfering with an officer. He grabbed her by her arm, but she continued to reach for the

front door after getting on the stairs to the porch. Officer Simpson tried to handcuff appellant

but reported that appellant began “pushing and pulling and trying to get away.” As they continued

to “struggle,” Officer Simpson stated that some children opened the front door of the house. He told

them to go inside and shut the door.

               Officer Simpson, who was 6'1" tall and weighed 245 pounds and held a second degree

black belt in Judo, finally got a “shoulder hold” on appellant. They fell onto a car and onto the

ground. The officer was on top of appellant. He had handcuffed one arm but was trying to extract

appellant’s other arm from beneath her. At this time Officer Carl Snellings arrived and placed a

centurion control stick in appellant’s back at a nerve pressure point. This caused appellant to offer



       3
          Officer Kelly Murphy, who arrived on the scene shortly after Gunn was stopped, confirmed
the earlier incident described by Officer Simpson, although he did not hear the conditional threat.
He did see weapons in the house.
       4
         Officer Simpson had not had time to search Gunn or his vehicle. The two small children
were in the Gunn car and its headlights and ignition had not been turned off. Officer Simpson,
however, knew that other police officers would be on the scene shortly.

                                                  4
up her other arm for handcuffing. Appellant was placed in a patrol unit after Officer Simpson put

pressure on a nerve near her ear.

               Officer Simpson then returned to his investigation of Gunn and administered

field sobriety tests. Officer Kelly Murphy had arrived and temporarily taken custody of Gunn.

Officer Simpson later had surgery on his knee as a result of his encounter with appellant.

               Appellant did not testify. The only defense witness offered before the jury was

Sheila Mooney, appellant’s daughter, who was fourteen years old at the time of the incident. Sheila

related that she lived at 205 Burnet with her mother, stepfather and younger brother at the time. She

recalled that in the early morning hours of September 14, 2005, she heard her mother yelling

and crying outside the house. Her stepfather was away in connection with his railroad job. She

opened the front door and saw her mother prone on the stairs with Officer Simpson standing

over her. He would not respond to Sheila’s questions as to what was happening. Her mother slid

keys and a cell phone across the porch and told her (Sheila) to call her grandfather. As she watched,

Officer Simpson picked her mother up and they fell onto a nearby car. Sheila then reported that a

female officer Kimberly Brannan [now Smith] screamed at her to go inside. She did and then called

her grandfather.

               During Sheila’s direct testimony, the mystery of Barrett Gunn’s connection with

appellant was slightly unveiled. Sheila identified Gunn as a “cousin” whose relationship had never

been explained to her, that he had “just come back” and was “visiting” and staying at 205 Burnet.

The children in Gunn’s car, including a one-year-old child, were connected with Gunn and staying




                                                 5
at the same address. Sheila reported that the officers brought the children to her, and that she, her

brother, and the children later went to “grandfather’s house” to spend the rest of the night.

               Appellant introduced the King’s Daughters Hospital emergency room records where

she was treated later on September 14, 2005 for multiple areas of bruises and pain.


                                    LEGAL SUFFICIENCY

               We turn now to the initial claim in appellant’s first point of error. In determining

whether the evidence is legally sufficient to support the judgment, we view the evidence in the light

most favorable to the verdict, asking whether any rational trier of fact could have found beyond a

reasonable doubt all the essential elements of the offense charged. See Jackson v. Virginia, 443 U.S.

307, 319 (1979); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000); Johnson v. State,

23 S.W.3d 1, 7 (Tex. Crim. App. 2000).

               The evidence viewed in this light and all reasonable inferences drawn therefrom

are evaluated in this review. Alvarado v. State, 912 S.W.2d 199, 207 (Tex. Crim. App. 1995). A

reviewing court must consider all evidence, rightly or wrongly admitted, which the trier of fact was

permitted to consider. See Garcia v. State, 919 S.W.2d 370, 378 (Tex. Crim. App. 1994); Johnson

v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The standard for review is the same for both

direct and circumstantial evidence. Green v. State, 840 S.W.2d 394, 401 (Tex. Crim. App. 1992).

Appellate courts measure the legal sufficiency of the evidence against a hypothetically correct

jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

               In analyzing a challenge to the legal sufficiency of the evidence, the reviewing

court does not realign, disregard, or weigh the evidence. Rodriguez v. State, 939 S.W.2d 211, 218

                                                 6
(Tex. App.—Austin 1997, no pet.). The jury, as the trier of fact, is the sole judge of the credibility

of the witnesses and of the weight to be given the testimony. See Sharp v. State, 707 S.W.2d 611,

614 (Tex. Crim. App. 1986); Williams v. State, 692 S.W.2d 671, 676 (Tex. Crim. App. 1984).

                Pursuant to section 38.03 of the Texas Penal Code,5 appellant was charged

by complaint and information with the Class A misdemeanor offense of resisting arrest. The

information in pertinent part provided:


       That in the County of Bell, State of Texas, on or about the 14th day of September,
       2005, A.D., in Bell County, Texas and anterior to the filing of this information, one
       Cindy Martin, the defendant, did then and there intentionally prevent and obstruct
       Jerome Simpson, a person the defendant knew was a peace officer, from effecting
       an arrest and search and transportation of Cindy Martin, by using force against the
       said officer in that the defendant struggled with the said officer, . . .


(Emphasis in original).


       5
           Section 38.03 provides:

       (a) 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.

       (b) It is no defense to prosecution under this section that the arrest or search was
       unlawful.

       (c) Except as provided in Subsection (d), an offense under this section is a Class A
       misdemeanor.

       (d) An offense under this section is a felony of the third degree if the actor uses a
       deadly weapon to resist the arrest or search.

Tex. Penal Code Ann. § 38.03 (West 2003).


                                                  7
               In her brief, appellant urges that the evidence is legally insufficient to support

appellant’s conviction because the State failed to prove that appellant used force against the

police officer. Appellant limits her legal sufficiency claim to this element of the offense of resisting

arrest. This is the only claim we need address.

               Our penal code does not provide a definition of the phrase “using force against” as

set forth in section 38.03(a) or of those words individually. Simply refusing to cooperate with

being arrested does not constitute resisting arrest by force. Sheehan v. State, 201 S.W.3d 820, 823

(Tex. App.—Waco 2006, no pet.). Non-cooperation with an arrest is not by itself an act of the “use

of force against” a peace officer under the statute. Id. at 822.

               Appellant calls attention to part of Officer Simpson’s testimony: “She was just

trying to get away. She had no intention to physically injure me.” Appellant then notes that

Officer Simpson agreed that she did not assault, hit, kick, bite, slap, or spit at him, nor did she

use her keys or purse in their encounter. Appellant relies upon Raymond v. State, 640 S.W.2d 678,

679 (Tex. App.—El Paso 1982, pet. ref’d) (holding that evidence defendant simply pulled away

was insufficient to show use of force against officer), and Leos v. State, 880 S.W.2d 180, 184

(Tex. App.—Corpus Christi 1994, no pet.) (holding that citizen’s attempt to frustrate officer’s

attempt to shackle him was insufficient showing of force directed toward officer to sustain

conviction for resisting arrest). Both Raymond and Leos sought to distinguish violence directed

“toward” an officer from force utilized in pulling away from an officer. Appellant acknowledges

that Torres v. State, 103 S.W.3d 623, 627 (Tex. App.—San Antonio 2003, no pet.), and Bryant




                                                   8
v. State, 923 S.W.2d 199, 207 (Tex. App.—Waco 1996, pet. ref’d), were both critical of the

Raymond and Leos decisions.

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

court noted that Texas cases differ on what is required to establish a use of “force against” an officer

under section 38.03. Many cases, the court observed, have at least verbalized a distinction between

a force directed toward an officer and a force that opposes the officer’s effort to arrest but which

is directed away from him or her. Id. at 89-90. Other cases explicitly hold that only force directed

toward an officer can support a conviction. Id. at 90 (citing the Raymond and Leos decisions). The

Pumphrey court noted that most cases involve actions that are clearly more than a simple

pulling away from the officer’s “restraint.” Id. The court concluded that the distinction between

force directed toward the officer and force in opposition to, but away from, the officer can result

in an almost “metaphysical analysis.” Id. at 91. The court believed these questions can be avoided

by reference to section 38.03 itself. Id. at 91. The Pumphrey court then added:


       The ordinary meaning of “resist” does not require that the resistance be directed
       toward the person or force being resisted. To “resist” is to “exert oneself so as to
       counteract or defeat.” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY
       1060 (11th ed. 2006). Interpreting “force against” to require that force be directed
       toward the officer contradicts the ordinary meaning of the word “resist.” In the
       absence of a statutory definition to the contrary, we believe the proper understanding
       of “against” in the context of “resisting arrest” allows for the use of force in
       opposition to, but not necessarily directed toward, the officer who is attempting to
       make an arrest. We conclude that “against” as used by Section 38.03 of the Texas
       Penal Code, does not require force directed at or toward the officer, but also is met
       with any force exerted in opposition to, but away from, the officer, such as a simple
       pulling away.

       ....



                                                   9
        Here, Pumphrey forcefully pulled away from the officer’s restraining grasp.
        Therefore, her conviction must stand. That being said, we add that, here, Pumphrey
        did more than merely pull away from the officer. She jerked, she squirmed, she
        twisted, she turned, and she struggled, all against the officer’s efforts to physically
        restrain her in the process of making the arrest. Those actions also sufficiently
        support the conviction.


Id. at 91-92.

                Appellant leans heavily on Officer Simpson’s testimony concerning actions that

appellant did not take against him to support her theory of mere non-cooperation with the arrest. In

a sense, such testimony is somewhat inconsistent with the balance of the Simpson testimony. The

record reflects evidence of appellant’s strong opposition and resistance to the arrest. When

Officer Simpson first tried to handcuff appellant, he related that appellant began pushing, pulling,

and shoving, and “continued to squirm around and fight.” He stated that appellant “actually spun

around and was able to get me with her arm.” He attributed the “violent twisting and turning” on

the stairs in causing a tear in the meniscus in his knee. He described appellant as continuing to

“struggle violently” and their encounter as a “violent tussell.” Once Officer Simpson got a shoulder

lock on appellant, they fell onto a car, and then she pushed him to the ground. He got on top of her

and they continued to struggle until Officer Snellings arrived with his control stick.

                Viewing all the evidence in the light most favorable to the jury’s verdict, we conclude

that any rational trier of fact could have found beyond a reasonable doubt all the essential elements

of the offense of resisting arrest. We overrule appellant’s first contention that the evidence is legally

insufficient to sustain the conviction.




                                                   10
                                    FACTUAL SUFFICIENCY

                 We now examine the second part of the first point of error. In a factual sufficiency

review, the evidence is analyzed in a neutral light rather than (as in a legal sufficiency review) in the

light most favorable to the verdict. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007).

Evidence can be factually insufficient in one of two ways: (1) when the evidence supporting

the verdict is so weak that the verdict seems clearly wrong and manifestly unjust; and (2) when

the supporting evidence is outweighed by the great weight and preponderance of the contrary

evidence so as to render the verdict clearly wrong and manifestly unjust. Id.; Watson v. State,

204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). Under this standard of review, while we have

the ability to second-guess the fact-finder to a limited degree, we must nonetheless be deferential to

the fact-finder’s determinations and a high level of skepticism about the jury’s verdict is necessary

before a reversal can occur. Roberts, 220 S.W.3d at 524; Marshall v. State, 210 S.W.3d 618, 625

(Tex. Crim. App. 2006); Cain v. State, 958 S.W.2d 404, 407, 410 (Tex. Crim. App. 1997). In a

factual sufficiency analysis, it must be remembered that the jury is still the trier of fact and judge of

the credibility of the witnesses. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997).

Appellate courts should be on guard not to substitute their own judgment in these matters for the

trier of fact. Id.

                 We need not reiterate the facts. Applying the above-described standard of review,

and considering all the evidence impartially in a neutral light, we reject appellant’s contention that

the evidence is factually insufficient to sustain her conviction for resisting arrest under section 38.03.

The multifarious first point of error is overruled.



                                                   11
                                    THE OTHER OFFENSE

               In her second point of error, appellant again challenges in a single point of error

the legal and factual sufficiency of the evidence to sustain her conviction for interference with the

duties of a police officer. Appellant contends that merely being present at the scene of another

citizen’s arrest, and leaving the scene of that arrest does not, without more, constitute a violation

of section 38.15.

               In pertinent part that statute provides:


       (a) A person commits an offense if the person with criminal negligence interrupts,
       disrupts, impedes, or otherwise interferes with:

               (1) a peace officer while the peace officer is performing a duty or exercising
               authority imposed or granted by law.

       (d) It is a defense to prosecution under this section that the interruption, disruption,
       impediment, or interference alleged consisted of speech only.


Tex. Penal Code Ann. § 38.15 (a)(1), (d) (West Supp. 2008).6

               Section 6.03(a) of the Texas Penal Code defines the culpable mental state of criminal
negligence:


       A person acts with criminal negligence, or is criminally negligent, with respect to
       circumstances surrounding his conduct or the result of his conduct when he ought to
       be aware of a substantial and unjustifiable risk that the circumstances exist or the
       result will occur. The risk must be of such a nature and degree that the failure to
       perceive it constitutes a gross deviation from the standard of care that an ordinary




       6
          The current code is cited for convenience. The pertinent part of the statute remains
unchanged from the Act of May 25, 2005, 79th Leg., R.S. ch. 1212, § 1, 2005 Tex. Gen. Laws 3932,
3933, in effect at time of the alleged offense.

                                                 12
       person would exercise under all the circumstances as viewed from the actor’s
       standpoint.


Tex. Penal Code Ann. § 6.03(a) (West 2003).

               The amended information upon which appellant was tried provides in pertinent part

that appellant, on or about September 14, 2005:


       did then and there with criminal negligence interrupt, disrupt, impede and otherwise
       interfere with a peace officer, namely, Jerome Simpson, while the peace officer was
       performing a duty and exercising authority imposed and granted by law, to wit: The
       defendant failed and refused to stop and remain in the officer’s presence when
       specifically told while the officer was in the process of arresting an individual and
       causing the officer to interrupt the arrest of a detained suspect.


               “Criminal negligence depends upon a morally blameworthy failure to appreciate

a substantial and unjustifiable risk . . . .” Williams v. State, 235 S.W.3d 742, 751 (Tex. Crim. App.

2007). Criminal negligence means that the actor should have been aware of the risk surrounding

her or his conduct, but failed to perceive it. Dowden v. State, 758 S.W.2d 264, 270 (Tex. Crim. App.

1988); Ford v. State, 14 S.W.3d 382, 387 (Tex. App.—Houston [14th Dist.] 2000, no pet.). Thus,

criminal negligence involves inattentive risk creation. Montoga v. State, 744 S.W.2d 15, 29

(Tex. Crim. App. 1987); Tello v. State, 138 S.W.3d 487, 492 (Tex. App.—Houston [14th Dist.]

2004), aff’d, 180 S.W.3d 150 (Tex. Crim. App. 2005); Ford v. State, 14 S.W.3d 382, 387

(Tex. Crim. App. 2000). The State has to prove that a defendant ought to have been aware of a

substantial and unjustifiable risk, not that the defendant was aware of a substantial and unjustifiable

risk. Lopez v. State, 630 S.W.2d 936, 940 (Tex. Crim. App. 1982); Tello, 138 S.W.3d at 492.




                                                  13
               The focus of appellant’s argument is that the State did not prove the culpable mental

state of criminal negligence. She appears to rely solely upon the failure to prove this one element

of the offense. Appellant cites only Duncantell v. State, 230 S.W.3d 835 (Tex. App.—Houston

[1st Dist.] 2007, pet. ref’d), apparently as being factually distinguishable. In Duncantell, the

convicted defendant invaded the scene of the officer’s investigation, interrupted it, and had to be

repeatedly ordered to stand back. Appellant contends that she walked in the opposite direction, but

she overlooks the officer’s order not to leave the scene.

               Appellant argues that she was not a party to any offense that the officer may have

been investigating, and that other than driving by the scene of the arrest or the detention, appellant

had no knowledge of the then-unfolding confrontation. Appellant asserts in her brief that “[t]here

was no evidence that appellant recognized the citizen being arrested or the officer making the arrest.”

               At trial, appellant introduced hospital records of the King’s Daughters Hospital

where she was treated, on September 14, 2005. These records included appellant’s statement to

Dr. John Henderson that she had been assaulted by a police officer. In pertinent part Dr. Henderson

reported: “She says she got to her house, a police officer had stopped her cousin in front of her

house and was talking to her cousin. She said that she did not think much of it, but then pulled

into her driveway, got out of her car . . . .” These statements in the hospital’s record are somewhat

contrary to the assertions in appellant’s brief.

               We need not reiterate all the facts. Officer Simpson had chased Barrett Gunn to the

driveway at 205 Burnet as earlier described. The officer’s patrol vehicle was parked on the street

at the entrance to the driveway with its flashing overhead lights activated. Officer Simpson had the



                                                   14
motorist Gunn out of his car and on the ground at gunpoint. Gunn indicated that he was trying to

get to “that” house. There were two small children in Gunn’s car and the motor was still running.

Before the officer could even search Gunn for weapons, appellant drove past the flashing lights

and into the driveway. This distracted the officer, and gave him the impression that there might

be a connection between Gunn and appellant. The evidence shows there was. They were cousins,

and Gunn and the children were staying at 205 Burnet.             The non-testifying appellant did

acknowledge in her statement to Dr. Hendrson that Gunn had been stopped and was talking to

the officer. Nevertheless, she got out of her vehicle, and according to Officer Simpson, disregarded

his order for her to stop and not to move or leave the area. For reasons earlier described,

Officer Simpson left Gunn, apparently intoxicated, on the ground and the children unattended in the

car, in order to detain appellant. Clearly there was an interference with officer Simpson’s duty as

alleged. Appellant’s statement given at the hospital was that “she did not think much of it.”

               There was, of course, some conflict in the evidence, but the jury is the exclusive

judgment of the credibility of the witnesses and the weight to be given their testimony. Johnson,

23 S.W.3d at 7. Reconciliation of conflicts in the evidence falls within the exclusive province of the

jury. Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995).

               Viewing the evidence in the light most favorable to the jury’s verdict, we conclude

any rational trier of fact could have found beyond a reasonable doubt all the essential elements,

including the culpable mental state of criminal negligence, of the offense of interfering with a

peace officer’s duties as alleged. The legal sufficiency claim is overruled.




                                                 15
                                   FACTUAL SUFFICIENCY

               In the second part of the second point of error appellant raises the contention

that the evidence is factually insufficient to sustain her conviction under section 38.15. In her brief

appellant states that “[a] review of the evidence demonstrates that proof of appellant’s guilt is

weak and this Court should have no confidence in the jury’s verdict. Any proof of appellant’s

guilt is outweighed by the record and evidence in this case.” This is an obvious reference to a

claim of factual insufficiency. Appellant has briefed the second point jointly as to legal and factual

insufficiency of the evidence. It is difficult to separate appellant’s argument concerning the two

claims. It is not pointed out how regarding all the evidence in a neutral light would render the

evidence factually insufficient.

               We need not restate the evidence, but viewing all of it in a neutral light and applying

the standard of review set out in Roberts, 220 S.W.3d at 524, we overrule appellant’s second part

of her second point of error. See Boyd v. State, 217 S.W.3d 37, 43 (Tex. App.—Eastland 2006,

pet. ref’d); Key v. State, 88 S.W.3d 672, 676-77 (Tex. App.—Tyler 2002, pet. ref’d).

               The judgment is affirmed.




                                                  16
                                             John F. Onion, Jr., Justice

Before Chief Justice Jones, Justices Pemberton and Onion*

Affirmed

Filed: July 10, 2009

Do Not Publish




* Before John F. Onion, Jr., Presiding Judge (retired), Texas Court of Criminal Appeals, sitting by
assignment. See Tex. Gov’t Code Ann. § 74.003(b) (West 2005).

                                                17
