                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-12-00268-CR

                                              Sivol BLACK,
                                                 Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                      From the County Court at Law No. 1, Bexar County, Texas
                                      Trial Court No. 309910
                          The Honorable John D. Fleming, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Catherine Stone, Chief Justice
                  Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: May 29, 2013

AFFIRMED

           A jury found appellant Sivol Black guilty of resisting arrest. The trial court sentenced

Black to six months in jail and a fine. Upon application by Black, the trial court suspended the

jail time and placed Black on probation for one year. On appeal, Black contends the evidence is

legally insufficient to support his conviction. We affirm the trial court’s judgment.

                                              BACKGROUND

           Officer Carlos Carrillo and a “cover officer,” Edward Guajardo, both of the Leon Valley

Police Department, were completing a traffic stop when they heard persistent honking in the
                                                                                      04-12-00268-CR


parking lot of a Planet Fitness across the street.      A concerned citizen approached Officer

Guajardo during the traffic stop about a disturbance in the Planet Fitness parking lot. The citizen

told the officer a man was attacking a woman. Officer Guajardo stayed to speak to the witness,

and Officer Carrillo drove over to the Planet Fitness parking lot. Officer Carrillo testified he saw

a man, later identified as Black, standing in front of a car in the parking lot with his hands on the

hood. The officer testified the driver of the car was trying to leave, but Black was preventing her

from leaving. The officer later discovered the car was driven by Cayla Burke. Officer Carrillo

testified Black was yelling at Burke. Specifically, the officer stated Black was “out of control,

yelling at her.”

        Officer Carrillo, who was in full uniform and driving a marked patrol car, approached

Black and asked him “to step away from the female” and walk over to the patrol car. Officer

Carrillo testified it took a while for Black to comply, but he finally started walking toward the

patrol car.

        Officer Carrillo testified he was concerned for Burke’s safety, as well as his own, because

Black was “very mad” at Burke, continuing to yell at her. The officer could not calm Black

down. He then asked Black to place his hands on the patrol car so he could conduct a weapons

“pat-down.” Officer Carrillo advised Black that he was going to frisk him and placed his hands

on the center of Black’s back and one of his feet next to Black’s in the event Black resisted.

Black continued to yell at Burke.

        Before the officer could conduct the pat-down, Black “pulled away” and headed toward

Burke, still yelling, blaming her for the arrival of police. Officer Carrillo testified Black refused

to calm down and return to the patrol car. The officer testified Black was “so angry.” Failing in

his attempt to pat Black down for weapons, and fearing for Burke’s safety, Officer Carrillo

grabbed Black and tripped him; both men fell to the ground. The officer stated he intended at
                                                -2-
                                                                                       04-12-00268-CR


that time to place Black in handcuffs because he had lost control of him. According to Officer

Carrillo, Black stood up first. Officer Carrillo testified that when he stood up, Black “came

towards me like if he was going to attack me . . . [Black] squatted down a little bit and came at

me like this and put me on his shoulder, and he forced me back” to the left fender of the patrol

car. The officer testified Black was using force against him, tackling him and pinning him

against the patrol car.

        While they were struggling on the front of the patrol car, Officer Guajardo arrived and

grabbed Black around the waist, attempting to pull him away from Officer Carrillo. Officer

Carrillo stated that when Black refused to release him, despite the efforts of Officer Guajardo, he

sprayed Black with pepper spray. Officer Guajardo eventually subdued Black by pulling both

Black and Officer Carrillo to the ground; Officer Guarjardo fell to the ground as well. At that

point, Black was still resisting the officers’ efforts to subdue him, but Officer Carrillo was able to

place him in handcuffs. It was only then that Black stopped resisting. Officer Carrillo testified

Black resisted during the “whole ordeal,” using force against him.

        Officer Guajardo, who was also in full uniform and driving a marked patrol car, testified

that when he arrived at the Planet Fitness parking lot, he first saw Black resisting Officer

Carrillo’s attempt to pat him down for weapons. He then saw Black move toward the female in

the car. Officer Carrillo and Black began “struggling.” He stated Black was fighting with

Officer Carrillo, pushing him and pinning him against the patrol car. He also told the jury Black

tried to place Officer Carrillo in a “chokehold.” Officer Guajardo said he then grabbed Black

around the waist, attempting to place him on top of the patrol car, but because Black was so

“irate,” he ended up taking him down to the ground. Officer Guajardo testified that even on the

ground Black would not allow the officers to take control of his hands and place him in

handcuffs despite their continuing to order Black to stop fighting. The officer testified Black
                                                 -3-
                                                                                      04-12-00268-CR


was resisting arrest and search. Only after Officer Carrillo sprayed Black with the pepper spray

did Black stop resisting the officers’ effort to handcuff him.

       The officers called EMS to the scene to treat Black for pepper spray. Black was then

taken to the magistrate’s office.

       After the officers testified, the State rested and Black presented his defense. With regard

to the events at Planet Fitness, Black stated that he and his girlfriend of three years, Burke, were

working out, but decided to leave. Burke got into her vehicle and locked the doors. Black said

the two had ridden together and his wallet and phone were in the car, and he was unable to

retrieve them. According to Black, Burke was angry and pulled out of the parking lot, but

stopped in a vacant area nearby. Black stated he walked over to the car and asked for his

belongings. Black admitted raising his voice, but denied he was acting in an irate manner.

According to Black, it was then the police arrived. Black told the jury that when the first officer

arrived, Burke got out of her car and told the officer everything was fine; Black told the officer

the same thing. Black admitted he was standing in front of Burke’s car, claiming he was merely

trying to retrieve his personal items. He denied yelling or trying to stop Burke from leaving.

Black testified “[t]he officer was angry as soon as he exited the vehicle.” He said the officer was

“ill-tempered” and seemed upset.

       Black stated that as soon as the officer got out of his car, he told Black to put his hands

on the car, which Black claimed he did. Black said he spread his legs as requested, but was

trying to explain to the officer that he and Burke were merely having a disagreement. Black said

Burke was trying to “calm” the officer and explain there was nothing going on. Black said the

officer told him to spread his legs further, and that he complied, spreading his legs so far he was

“practically doing the splits.” Black said that while in this position with his hands on the car, the

officer grabbed his arm and “yank[ed] it back.” Black said he turned and before he could ask
                                                -4-
                                                                                    04-12-00268-CR


why he was being arrested, the officer slammed his head against the car. Black asked the officer,

“Why are you arresting me?” When he asked that question, the officer slammed him against the

car. Black said Burke was screaming and crying, asking the officer to stop. Black claimed he

continued to try to comply with the officer’s demands, but the officer then “trie[d] to push me off

of the hood of the car.” Black said he began to fall and put his arm out to catch himself. It was

then a second officer caught him and pushed him from the side, but Black denied the second

officer was Officer Guajardo. According to Black, Officer Guajardo “was never there to even be

involved in the situation at all.” Black testified the second officer held him down with his face

on the hood of the car. Black said he was pepper sprayed while his face was being held on the

hood of the car. He was then slammed to the ground with a knee to his neck. The officer

holding him was using derogatory terms “under his breath,” including “the N word” and “M-F.”

Black testified he was speechless, unable to believe what was happening to him. Black said that

in addition to the pepper spray, his face was “smashed up,” his “nose was bleeding,” and his

“mouth was bleeding.” Black said he and Burke were both crying. Black said this was the first

time he had ever been in trouble before, never having been arrested or placed in handcuffs.

       On cross-examination, Black stated the officers who testified were lying and he was the

only one being truthful about the events at Planet Fitness. However, the State pointed out he had

been arrested for family violence in 2007, contrary to his claim that he had never been in trouble

or been arrested. Black admitted he was not truthful with regard to his prior arrest, but explained

he believed the prior assault matter had been dismissed.

       Black called two character witnesses on his behalf, one of his roommates and a former

co-worker. Both witnesses testified they were familiar with Black and that he was cooperative,

nonconfrontational, peaceful, and level–headed.



                                               -5-
                                                                                      04-12-00268-CR


       In rebuttal, the State recalled Officer Guajardo. The officer reiterated that he was the

second officer to arrive and he was the one who assisted in subduing Black. Officer Guajardo

stated a third officer arrived after Black was handcuffed. Officer Guajardo denied Black had a

bloody nose or mouth or any injuries other than those from the pepper spray. He identified a

photograph of Black that was taken the night of the incident, and the photograph was admitted

into evidence. The photo did not appear to show any bleeding or other injuries. Other photos of

Black were admitted at Black’s request. These photos purported to show swelling and bruising

of Black’s nose and lips, as well as a bruise on the side of Black’s neck.

       After deliberating, the jury found Black guilty. As noted above, the trial court sentenced

Black to six months in jail and a fine. However, the trial court suspended the jail time and

placed Black on probation for one year. Black then perfected this appeal.

                                             ANALYSIS

       In a single issue, Black contends the evidence is legally insufficient to support his

conviction. Specifically, he argues there was no evidence to establish he was resisting arrest

because there was no evidence the officer was actually attempting to arrest him; rather, the

officer was attempting to search him, which was not a manner and means included in the

information or the jury charge.

                                        Standard of Review

       In determining the legal sufficiency of the evidence to support a criminal conviction, an

appellate court uses the standard established by the United States Supreme Court in Jackson v.

Virginia. See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (citing Jackson v.

Virginia, 443 U.S. 307 (1979)); Mayberry v. State, 351 S.W.3d 507, 509 (Tex. App.—San

Antonio 2011, pet. ref’d). The legal sufficiency claim is reviewed, “after viewing the evidence

in the light most favorable to the verdict, any rational trier of fact could have found the essential
                                                -6-
                                                                                      04-12-00268-CR


elements of the crime beyond a reasonable doubt.” Mayberry, 351 S.W.3d at 509 (citing

Jackson, 443 U.S. at 319). It is essential to defer to the jury’s weighing of the evidence,

resolution of conflicts in the testimony, and assessment of credibility. Brooks, 323 S.W.3d at

899; see also Jackson, 443 U.S. at 319 (examining trier of fact’s duty to resolve conflicts in

testimony, to draw reasonable inferences from basic facts to ultimate facts, and to weigh

evidence). Moreover, the jury maintains the power to draw reasonable conclusions from basic

facts to ultimate facts; and it is the jury’s duty to reconcile any evidentiary conflicts. Welch v.

State, 993 S.W.2d 690, 693–94 (Tex. App.—San Antonio 1999, no pet.); Heiselbetz v. State, 906

S.W.2d 500, 504 (Tex. Crim. App. 1995).

       The State must meet its burden of proving each of the required elements of the charged

offense beyond a reasonable doubt; proof may be by direct or circumstantial evidence. Easley v.

State, 986 S.W.2d 264, 271 (Tex. App.—San Antonio 1998, no pet.) (citing Jackson, 443 U.S. at

319). Moreover, in making a sufficiency of the evidence determination, a reviewing court

discerns that, “[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).

                                            Application

       A person commits the offense of resisting arrest “if he intentionally prevents or obstructs

a person he knows is a peace officer . . . from effecting an arrest, search, or transportation of the

actor or another by using force against the peace officer or another.” TEX. PENAL CODE ANN.

§ 38.03(a) (West 2011). However, the charging instrument in this case alleged Black committed

the offense by intentionally preventing Officer Carrillo from effecting an arrest. The information

makes no mention of preventing or obstructing a search or transportation. Based on the charging

instrument and the opinion in Clinton v. State, 354 S.W.3d 795 (Tex. Crim. App. 2011), Black
                                                -7-
                                                                                       04-12-00268-CR


contends the State was limited to the single manner alleged in the information, i.e., the State had

to prove Black prevented or obstructed the officer from making an arrest, as opposed to

preventing him from searching Black. We hold, however, that we need not decide whether the

State was limited to the particular manner or means alleged in the information. Assuming,

arguendo, that the State was so limited, we hold the evidence was legally sufficient to prove

beyond a reasonable doubt that Black prevented Officer Carrillo from effectuating Black’s arrest.

       Black argues that at the time he was resisting, he was merely resisting Officer Carrillo’s

attempt to frisk or search him, and the officer was not “effecting an arrest” as required by the

information. Black contends there was no evidence Officer Carrillo was attempting to effect an

arrest. We disagree.

       To convict a defendant of resisting arrest under section 38.03, the State must prove

beyond a reasonable doubt (1) the defendant intentionally (2) prevented or obstructed (3) a

person he knows is a peace officer (4) from effecting an arrest (5) of him (6) by using force

against the officer. Latham v. State, 128 S.W.3d 325, 329 (Tex. App.—Tyler 2004, no pet.); see

TEX. PENAL CODE ANN. § 38.03(a). It is no defense that the arrest was unlawful or arbitrary.

Latham, 128 S.W.3d at 329; see TEX. PENAL CODE ANN. § 38.03(b). The only element at issue

in this case is whether the officers were effecting an arrest at the time Black was resisting.

       “Effecting an arrest” is not an easily ascertainable moment in time. See Lewis v. State, 30

S.W.3d 510, 512 (Tex. App.—Amarillo 2000, no pet.). Rather, effecting an arrest entails a

process or transaction. Id. The defendant’s intentional use of force must exist within the arrest

transaction period. Id. The moment an officer begins his efforts to gain control or physically

restrain an individual until that individual is restrained or controlled, the officer is “effecting an

arrest.” Latham, 128 S.W.3d at 329.



                                                 -8-
                                                                                   04-12-00268-CR


       An officer must have a pre-existing intent to arrest coupled with some action taken

pursuant to that intent. Id. However, whether the officer is effecting an arrest is not dependent

upon the officer verbalized his intention. Id. Although the officer’s opinion as to whether the

defendant was under arrest is relevant and to be considered, it is not conclusive. Id.; see

Nottingham v. State, 908 S.W.2d 585, 588 (Tex. App.—Austin 1995, no pet.) (citing Hoag v.

State, 728 S.W.2d 375, 378–79 (Tex. Crim. App. 1987)). Further, whether a person is under

arrest is determined by asking if a reasonable person would have believed he was not free to

leave in light of all the circumstances surrounding the incident. Latham, 128 S.W.3d at 329.

       As described above, Officer Carrillo testified he was in full uniform and driving a marked

police vehicle when he arrived to investigate the reported disturbance in the Planet Fitness

parking lot. Officer Carrillo introduced himself as a police officer and attempted to separate

Black from Burke. Officer Carrillo stated he intended to frisk Black for weapons for safety

purposes given Black’s level of anger and refusal to calm down. Officer Carrillo asked Black to

place his hands on the patrol car so he could conduct a weapons “pat–down.” The evidence

shows Black resisted the initial pat–down, turning away from the officer and heading back

toward Burke. Black resisted Officer Carrillo’s attempt to control him, requiring the officer to

trip Black, which caused both men to fall to the ground. Officer Carrillo testified that at this

point a struggle ensued between himself and Black. The struggle was protracted.

       Officer Carrillo specifically testified that at this point he intended to handcuff Black.

Black stood up first and barreled into the officer, forcing him onto the fender of the patrol car.

The officer stated Black was using force against him, and the struggle continued. Then, even

after Officer Guajardo arrived, Black resisted efforts to control him, holding onto Officer

Carrillo, and according to Officer Guajardo, placing Officer Carrillo in a chokehold. Even after

Black was sprayed with pepper spray and officers had him on the ground and were attempting to
                                               -9-
                                                                                       04-12-00268-CR


handcuff him, Black continued to struggle with the officers. Officer Carrillo testified that Black

resisted during the “whole ordeal,” using force against the officer and stopping only when they

finally handcuffed him.

       Officer Carrillo’s testimony establishes he began his efforts to control and restrain Black

when Black resisted the pat down and turned back in an effort to get to Burke. Clearly, the

officer was attempting to restrain Black at this time–he tripped him and both men fell to the

ground. Thereafter, a prolonged struggle began with Officer Carrillo, and later Officer Guajardo,

while they attempted to handcuff Black. Though during the struggle neither officer advised

Black he was under arrest, the jury could have reasonably inferred that Officer Carrillo formed

the intent to arrest Black when he tripped him or at some point during the struggle, and that

intent, coupled with the attempted physical detention of Black, began the arrest process.

       Officer Carrillo stated clearly on the record that once he lost control of Black during the

pat–down process, he immediately realized he needed to handcuff Black. Black resisted within

the period of time that both Officer Carrillo and Officer Guajardo were attempting to subdue

Black and handcuff him. Officer Carrillo stated, “Once I handcuffed him, I mean, it all ended; it

stopped.” Black resisted with the use of physical force from the time Officer Carrillo first

attempted the pat–down search to the time he was handcuffed. Furthermore, Black himself

testified that during the struggle he asked Officer Carrillo, “Why are you arresting me?” Thus

Black himself understood, as could a reasonable person, he was in the process of being arrested.

       Black contends Officer Carrillo’s in-court-testimony established Officer Carrillo was

only trying to conduct a pat-down search of Black. However, as noted above, an officer is not

required to verbalize that he is arresting a person. Latham, 128 S.W.3d at 329. Furthermore, an

officer’s opinion that an arrest has or has not occurred is only one factor that the jury considers in

determining whether an arrest has occurred.
                                                - 10 -
                                                                                    04-12-00268-CR


       Although Officer Carrillo never verbalized that Black was under arrest, it is clear that

 the events taken as a whole could be interpreted by a rational jury as an arrest. The evidence

 of the ongoing struggle between both Officer Carrillo and Officer Guajardo required much

 more time and force than is typical for a search. The initial pat–down search changed

 drastically when Black pushed away from Officer Carrillo to charge towards the female,

 requiring Officer Carrillo to trip him. When Black got up he lunged towards Officer Carrillo

 as if to tackle him, thus establishing in Officer Carrillo the intent to handcuff him. The

 struggle continued to the point that both officers fell to the ground trying to gain control over

 Black. The record further indicates that Officer Guajardo stated Black was still resisting the

 search and arrest until he was handcuffed on the ground. Moreover, Officer Carrillo testified

 that even though his initial concern was for the safety of the female and himself, he later

 stated, after Black had resisted the pat down and slammed him up against the patrol vehicle,

 he was afraid for his life, and could not control the defendant.

       Accordingly, we hold the evidence was sufficient for the jury to determine that both

 officers were attempting to effectuate an arrest of Black from the time he refused to allow

 Officer Carrillo to conduct a pat–down until he was brought under control with the pepper

 spray and handcuffed. After viewing all of the evidence in the light most favorable to the

 verdict, we hold any rational trier of fact could have found the officers were effecting an

 arrest and that Black was resisting their efforts. We therefore overrule Black’s sole issue.

                                             CONCLUSION

       Based on the foregoing, we affirm the trial court’s judgment.


                                                  Marialyn Barnard, Justice

Do Not Publish


                                               - 11 -
