             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                      NO. PD-0259-13



                           ATHA ALBERT DOBBS, Appellant

                                               v.

                                 THE STATE OF TEXAS

         ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE FIRST COURT OF APPEALS
                        WASHINGTON COUNTY

       A LCALA , J., delivered the opinion of the Court in which K ELLER, P.J., P RICE,
W OMACK, J OHNSON, K EASLER, H ERVEY, and C OCHRAN, JJ., joined. M EYERS, J., filed
a dissenting opinion.

                                         OPINION

       In his petition for discretionary review, Atha Albert Dobbs, appellant, challenges the

sufficiency of the evidence to sustain his conviction for resisting arrest with a deadly weapon.

See T EX. P ENAL C ODE § 38.03(a), (d). A jury convicted appellant of that offense after he,

during an attempt by police officers to arrest him at his home, exhibited a firearm, refused

to put the weapon down when ordered to do so, and expressed his intent to use the firearm
                                                                                    Dobbs - 2

to shoot himself, but never threatened to use the weapon against the officers. Because we

conclude that no rational juror could have found that appellant’s conduct constituted a use

of force against a peace officer as required by the resisting-arrest statute, we hold that the

evidence is insufficient to sustain appellant’s conviction. We reverse the judgment of the

court of appeals and render a judgment of acquittal.

                                      I. Background

       In September 2010, appellant was living with his wife, Dawn, and her two daughters

in Washington County when one of the daughters told Dawn that appellant had been sexually

abusing her for several years. Dawn and her daughters moved out of the house the following

day. Dawn contacted the police to report her daughter’s allegations, and a warrant was

issued for appellant’s arrest.

       Because Dawn had indicated to police that appellant might resist arrest or attempt to

harm himself, five sheriff’s deputies were dispatched to his house to carry out the warrant.

Appellant saw the deputies approach the house through the kitchen window, and he retrieved

a loaded pistol out of his gun cabinet. The deputies surrounded the house and could see

inside through the windows. Two of the deputies went to the back of the house, two to the

side, and one officer, Deputy Kokemoor, approached the front door. From his position,

Kokemoor could see appellant walking toward the door with a gun in his hand. One officer

shouted to the others that appellant was holding a gun. The officers drew their weapons, and

Kokemoor ordered appellant to put down the gun. Appellant did not comply. Instead, he
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pointed the gun at his own temple. Although Kokemoor could not hear what appellant was

saying, it appeared to him that appellant was repeatedly mouthing the words, “I’m going to

kill myself.”

       Appellant then turned around and retreated deeper into the house. Kokemoor,

believing that appellant was suicidal and not a threat to the officers, lowered his gun, pulled

out his taser, and entered the house. Upon realizing that Kokemoor had entered, appellant

began to run into the living room, where the deputy shot him with the taser. Appellant then

fell to the floor, pinning one hand beneath himself while his other hand was still holding the

gun. When appellant did not comply with Kokemoor’s instruction to put his hands behind

his back, the deputy tasered appellant a second time and then kicked the gun out of

appellant’s hand. Appellant was arrested and transported to jail.

       Appellant was charged with continuous sexual abuse of a young child, aggravated

sexual assault, and resisting arrest.      The resisting-arrest offense was elevated from a

misdemeanor to a third-degree felony because the State alleged that appellant had used a

deadly weapon during commission of the offense.1 At trial, the jury was unable to reach a

unanimous verdict on the continuous-sexual-abuse and aggravated-sexual-assault offenses,

and the trial court declared a mistrial with respect to those two offenses. However, the jury



1
        See TEX . PENAL CODE § 38.03(d). With respect to the offense of resisting arrest, appellant
was indicted for “intentionally prevent[ing] or obstruct[ing] 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.”
                                                                                       Dobbs - 4

did find appellant guilty of resisting arrest with a deadly weapon, and it sentenced him to six

years in prison and assessed an $8,000 fine.

       On appeal, appellant argued that the evidence was insufficient to sustain his

conviction because the State failed to prove that he “us[ed] force against” a peace officer

within the meaning of that phrase as it appears in the resisting-arrest statute. See T EX. P ENAL

C ODE § 38.03(a); Dobbs v. State, No. 01-11-01126-CR, 2013 WL 561485, at *6 (Tex.

App.—Houston [1st Dist.] Feb. 14, 2013). Specifically, appellant contended that he had

merely exhibited a firearm, and that such conduct cannot constitute a use of force against a

peace officer. The court of appeals disagreed. Regarding the element of force, the court of

appeals observed that “a person can forcefully resist an arrest without successfully making

physical contact with the officer,” and it further observed that “actions which endanger an

officer” or that threaten an officer with imminent bodily injury may constitute use of force.

Dobbs, 2013 WL 561485, at *4. With respect to the meaning of the word “against” as it is

used in the statute, the court of appeals stated that “[c]ourts have made it 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.” Id. (citing Pumphrey v.

State, 245 S.W.3d 85, 90-91 (Tex. App.—Texarkana 2008, pet. ref’d); Hopper v. State, 86

S.W.3d 676, 679 (Tex. App.—El Paso 2002, no pet.)).

       Applying those principles to the facts of appellant’s case, the court of appeals

concluded that the evidence was sufficient to support his conviction for resisting arrest. Id.
                                                                                     Dobbs - 5

at *5-6. It explained,

       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 refused to put the gun
       down despite being instructed to do so. . . . The officers could not arrest
       appellant because he would not voluntarily relinquish the gun. . . . Viewed
       objectively, the evidence supports an inference that appellant’s conduct was
       ‘in opposition’ to the officers’ effectuating his arrest.

Id. at *5. Thus, basing its analysis on the fact that appellant’s conduct was “designed to

oppose the officer’s ability to complete the arrest,” the court concluded that “the jury could

have found that his conduct was ‘against’ the officer.” Id.

             II. Evidence Is Insufficient to Sustain Appellant’s Conviction

       In his sole ground for review, appellant asserts that the evidence is insufficient to

prove that he “us[ed] force against [a] peace officer” as required by the resisting-arrest

statute. See T EX. P ENAL C ODE § 38.03(a). We agree that the evidence is insufficient to

sustain the jury’s finding that appellant used force against a peace officer within the meaning

of the resisting-arrest statute. Id.

       A. Standard of Review

       We review the sufficiency of the evidence to establish the elements of a criminal

offense under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); see

also Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Under that standard, we

view the evidence in the light most favorable to the verdict and determine whether any

rational trier of fact could have found the essential elements of the offense beyond a
                                                                                        Dobbs - 6

reasonable doubt. Jackson, 443 U.S. at 318-19; see also Adames v. State, 353 S.W.3d 854,

859-60 (Tex. Crim. App. 2011). Circumstantial evidence is as probative as direct evidence

in establishing the guilt of the actor, and circumstantial evidence alone may be sufficient to

establish guilt. Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013) (citing

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

       The jury is the sole judge of credibility and weight to be attached to the testimony of

witnesses. See Jackson, 443 U.S. at 319. When the record supports conflicting inferences,

we presume that the jury resolved the conflicts in favor of the verdict, and we defer to that

determination. Id.; see also Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)

(observing that it is the fact-finder’s duty “to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts”) (quoting

Jackson, 443 U.S. at 319). 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. Hooper, 214 S.W.3d at 13.

       When we interpret enactments of the Legislature, “we seek to effectuate the collective

intent or purpose of the legislators who enacted the legislation.” Boykin v. State, 818 S.W.2d

782, 785 (Tex. Crim. App. 1991) (citations omitted). We focus our analysis on the literal text

of the statute and “attempt to discern the fair, objective meaning of that text at the time of its

enactment.” Id. Where that language is clear and unambiguous, we will give effect to its

plain meaning, unless that meaning would lead to absurd consequences that the Legislature
                                                                                    Dobbs - 7

could not have intended. Id.

       B. Resisting-Arrest Statute Requires Proof of Force Directed At or In
       Opposition to Officer

       Appellant’s sufficiency challenge necessarily requires us to determine what the

Legislature would have intended by its use of the phrase “using force against the peace

officer or another.” See T EX. P ENAL C ODE § 38.03(a); see also Boykin, 818 S.W.2d at 785.

The complete statutory elements of the offense of resisting arrest are that a person:

       (1) “intentionally prevents or obstructs”

       (2) “a person he knows is a peace officer or a person acting in a peace officer’s
       presence and at his direction”

       (3) “from effecting an arrest, search, or transportation of the actor or another”

       (4) “by using force against the peace officer or another.”

T EX. P ENAL C ODE § 38.03(a). The offense is elevated from a Class A misdemeanor to a

third-degree felony if “the actor uses a deadly weapon to resist the arrest or search.” Id. §

38.03(d).

       The terms “force” and “against” are not defined by the Penal Code, and so we

interpret those terms in accordance with their ordinary meaning. See Watson v. State, 369

S.W.3d 865, 870 (Tex. Crim. App. 2012) (“Terms not defined in a statute are to be given

their plain and ordinary meaning, and words defined in dictionaries and with meanings so

well known as to be understood by a person of ordinary intelligence are not to be considered

vague and indefinite.”). In relevant part, the meaning of the word “force” is “violence,
                                                                                      Dobbs - 8

compulsion, or constraint exerted upon or against a person or thing.” M ERRIAM-W EBSTER’S

C OLLEGIATE D ICTIONARY 455 (10th ed. 1996); see also W EBSTER’S N EW INTERNATIONAL

D ICTIONARY 887 (3d ed. 2002) (further defining force as “violence or such threat or display

of physical aggression toward a person as reasonably inspires fear of pain, bodily harm or

death”). The term “against” means “in opposition or hostility to”; “contrary to”; “directly

opposite”; “in the direction of and into contact with”; or “in a direction opposite to the

motion or course of.” M ERRIAM-W EBSTER’S C OLLEGIATE D ICTIONARY 21 (10th ed. 1996).

       Finding the meanings of these statutory terms plain and reading them in conjunction

with the other statutory terms, we conclude that the Legislature would have understood the

phrase “using force against the peace officer or another” as meaning 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 or another. See id. at 21, 455.

       The court of appeals, relying primarily on case law, interpreted the statute’s use of the

word “against” as “not requir[ing] action directed at or toward an officer; rather, it only

requires force exerted in opposition to the officer’s efforts at making an arrest.” Dobbs, 2013

WL 561485, at *4. The court of appeals further reasoned that forceful actions taken in

opposition to the officer’s overall goal of bringing about an arrest, even if not physically

directed at an officer, would fall within this definition of “against.” See id. at *4-5. But, as

noted above, the statutory language plainly requires a use of force directed “against” the

officer himself, not against his broader goal of effectuating an arrest. See T EX. P ENAL C ODE
                                                                                      Dobbs - 9

§ 38.03(a). 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 id. 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. See id. We are bound to give meaning to each phrase and

word within a statute. See Harris v. State, 359 S.W.3d 625, 629 (Tex. Crim. App. 2011) (We

must “presume that every word in a statute has been used for a purpose and that each word,

phrase, clause, and sentence should be given effect if reasonably possible”) (quotations

omitted); see also Nguyen v. State, 1 S.W.3d 694, 696 (Tex. Crim. App. 1999) (court “cannot

interpret a phrase within a statute in isolation”); Thomas v. State, 919 S.W.2d 427, 430 (Tex.

Crim. App. 1996) (“We always strive to give words and phrases meaning within the context

of the larger provision.”).

       In support of its position that the word “against” can encompass force exerted in
                                                                                       Dobbs - 10

opposition to the officer’s goal of making an arrest, even if that force is not physically

directed in opposition to or in the direction of the officer himself, the court of appeals cited

Pumphrey, 245 S.W.3d at 90, and Hopper, 86 S.W.3d at 679-80. We note, however, that

those cases are consistent with requiring some showing of force that is actually directed

against the officer in the sense that it is either in opposition to the officer’s physical efforts

at making an arrest, such as a forceful pulling away from the officer, or is physically directed

at or toward the officer, such as hitting or punching the officer. See Pumphrey, 245 S.W.3d

at 89-90 (noting that Pumphrey had “pulled” and “jerked” against the officer’s restraining

efforts applied to her wrists, and concluding that, based on the record, “the fact-finder could

have concluded Pumphrey and the officer struggled for at least a few seconds”); Hopper, 86

S.W.3d at 679-80 (noting that Hopper had struck officer in chest with his fist and kicked both

officers during struggle, and noting that statute plainly encompasses force that is used “to

shake off an officer’s detaining grip” or that is used when a person “pulls his arm away in

a sufficiently violent manner and with enough force to throw the arresting officer to the

ground”). And, although the court of appeals cited Pumphrey for the proposition that Section

38.03 does “not require action directed at or toward an officer, just force exerted in

opposition to his or her efforts at making an arrest,” the Pumphrey court’s explanation of the

law is more clearly expressed in the paragraph that immediately followed that statement:

       The distinction between force directed toward the officer and force in
       opposition to, but away from, the officer can result in almost metaphysical
       analyses. Must the principal motion of the defendant be toward the officer?
       What if he or she moves mostly away from the officer, but some portion of his
                                                                                      Dobbs - 11

       or her body moves toward the officer, as in flailing arms? What if there is a
       turning or twisting so that at least part of the body moves toward the officer?
       Must the actions of the defendant actually endanger the officer? How likely
       must that danger be? What if the “simple” pulling away is so forceful that it
       causes the officer injury or causes the officer to lose his or her balance? Is that
       enough? What if the pulling away can be characterized as a struggling with the
       officer? Is there a distinction between a forceful or violent pulling away and
       a more casual pulling away? Can one “shake off” an officer’s grip without
       moving toward the officer? Is that force directed toward the officer?

Pumphrey, 245 S.W.3d at 91. Thus, in concluding 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,” the court in Pumphrey clearly indicated that there must be an act directed at

or in opposition to the officer himself and his physical efforts to make an arrest, as opposed

to some metaphorical or metaphysical opposition to his overall goal of bringing about an

arrest. See id. The Pumphrey court’s statement, viewed in the broader context of the facts

and arguments presented in that case, was merely intended to clarify that a forceful act of

pulling away from an officer would also be included within the statutory phrase “using force

against” the officer. See id.; see also T EX. P ENAL C ODE § 38.03(a).

       Had the Legislature intended to permit any use of force in the presence of the officer

to constitute resisting arrest, it could have easily excluded the term “against” from the statute,

or, alternatively, it could have provided for penalties for exhibiting a deadly weapon in the

presence of an officer attempting to make an arrest. There may be good policy reasons for

the Legislature to draft such a statute, but, as long as the meaning of a statute is not
                                                                                          Dobbs - 12

ambiguous or the application absurd, we are bound to apply the plain language of the statute

as it is written, which in this case requires not only the use of force but also proof that the

force was used against the officer. See T EX. P ENAL C ODE § 38.03(a); see also Boykin, 818

S.W.2d at 785.

       We conclude that a use of force “against” an officer must necessarily be in opposition

to, or in the direction of and/or in contact with, the officer himself, meaning the officer’s

physical person. A use of force that is against the officer’s goal of effectuating an arrest in

the sense that it is hostile to or contrary to that goal, but that is not directed at or in opposition

to the officer, is not covered by the plain terms of the statute. See T EX. P ENAL C ODE §

38.03(a); see also Boykin, 818 S.W.2d at 785.

        C. No Rational Juror Could Have Found Appellant Used Force Against A
       Peace Officer

       Applying these principles to the facts of this case, we conclude that the evidence is

insufficient to sustain appellant’s resisting-arrest conviction. See Jackson, 443 U.S. at 318-

19. Here, the record indicates that appellant at all times either held the gun at his side or

pointed it at himself, and never at officers or anyone else.         The record is devoid of any

evidence to indicate that appellant threatened to use any kind of force against the officers,

but instead shows that he threatened only to shoot himself. Kokemoor indicated in his

testimony that he did not feel threatened by appellant at any point, and no evidence in the

record suggests that appellant directed any threat to or against Kokemoor or any of the other

officers.
                                                                                     Dobbs - 13

       It is true that appellant’s conduct in displaying the gun in the presence of officers and

refusing to put the gun down when ordered to do so could rationally be found to constitute

a use of “force” within the meaning of the statute, but without an additional showing that the

force was directed at or in opposition to the officers, he cannot reasonably be said to have

used force “against” a peace officer. Furthermore, although appellant’s refusal to put down

the gun when ordered to do so had the likely effect of delaying his arrest, that refusal cannot

reasonably be understood as constituting a use of force against the officer by virtue of its

being opposed to the officer’s goal of making an arrest. Likewise, appellant’s efforts to

manipulate the situation and intimidate officers for the purpose of delaying his arrest by

threatening to shoot himself cannot reasonably be found to constitute a use of force against

officers.

                                      III. Conclusion

       Because he did not use force “against” a peace officer within the meaning of the

resisting-arrest statute, we hold that the evidence is insufficient to sustain appellant’s

conviction. We reverse the judgment of the court of appeals and render a judgment of

acquittal.




Delivered: June 25, 2014

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