      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                         NO. 03-13-00015-CR



                              William Bryan Finley, III, Appellant

                                                  v.

                                   The State of Texas, Appellee


         FROM THE COUNTY COURT AT LAW NO. 2 OF WILLIAMSON COUNTY
         NO. 11-01764-2, HONORABLE TIMOTHY L. WRIGHT, JUDGE PRESIDING



                               DISSENTING OPINION


               I respectfully dissent.

               A fair reading of the officers’ testimony shows that when they decided to arrest

appellant, he refused their order to put his hands behind his back to be handcuffed. Officer Connor

attempted to grab one of appellant’s arms, and Officer Rollins attempted to grab the other arm to pull

them behind appellant’s back. In an effort to thwart the officers’ attempts to handcuff him, appellant

“tensed up his body,” turned his back on the officers, and pulled his hands and arms forward toward

his abdomen. In Officer Connor’s words, appellant was “trying to pull away from us.” After the

officers “leaned” appellant into the front door, Officer Connor tripped appellant and “took him

straight to the ground.” After he was on the ground, appellant “was trying to keep his hands

underneath his body.” Only after he was tased twice did appellant offer his hands for handcuffing.
               Obviously appellant was attempting to “prevent or obstruct a person he knows is a

peace officer . . . from effecting an arrest”; the issue here, however, is whether appellant’s actions

constitute “using force against the peace officer.” Tex. Penal Code § 38.03(a).

               As the majority opinion notes, Texas appellate courts have long struggled to

determine the meaning of “using force against the peace officer.” See Slip Op. at 4-5 nn.7-10. The

court of criminal appeals recently addressed this issue in Dobbs v. State, 434 S.W.3d 166 (Tex.

Crim. App. 2014), but I fear that the court’s opinion raises as many questions as it answers. The

court first held that “the statutory language plainly requires a use of force directed ‘against’ the

officer himself, not against his broader goal of effectuating an arrest.” Id. at 171. The court then

went on to state:


       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
       [Tex. Penal Code § 38.03(a)]. 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.


Id.

               Questions persist. For example, what does “in opposition to” mean? In its broadest

sense, this phrase could include opposition to the officer’s “broader goal of effectuating an arrest.”

If the phrase means less than that, how are the boundaries of that standard to be determined? Is the

line of demarcation when the arrestee comes “in contact with the officer himself”? But if that is the



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defining threshold, does it include contact initiated by the officer? As current Presiding Judge Keller

alluded to in her opinion in Thompson v. State,


        [T]he Court of Appeals appears to have misconstrued a statute, namely Texas Penal
        Code § 38.03. . . . Under the Court of Appeals’ interpretation, it would appear that
        an accused “uses force against a peace officer” even though the accused’s action
        merely consists of refusing to yield to a peace officer’s use of force against the
        accused. That interpretation seems questionable, and in my mind, appears to confuse
        which actor is actually using force. I am skeptical of the proposition that the mere
        resistance to force necessarily constitutes the actual use of force. The practice
        commentary to § 38.03, which we quoted in Washington [v. State, 525 S.W.2d 189
        (Tex. Crim. App. 1975)], appears to require more: “The section applies only to
        resistance by the use of force. One who runs away or makes an effort to shake off
        the officer’s detaining grip may be guilty of evading arrest under § 38.04, but he
        is not responsible under this section.” Washington, 525 S.W.2d at 190 (quoting
        practice commentary).


987 S.W.2d 64, 65 (Tex. Crim. App. 1999) (Keller, J., dissenting from refusal of PDR) (emphasis

in original).

                The difficulty in attempting to discern the answers to these questions from the Dobbs

opinion is that the factual circumstances in Dobbs were highly unusual (the defendant displayed a

gun but pointed it only at his own head). As a result, in the more typical case like the present one,

we are left to try to interpret standards such as “in opposition to” and “in contact with the officer”

in a vacuum.

                My own view of the law is similar to that adopted by the Waco Court of Appeals in

Sheehan v. State, 201 S.W.3d 820 (Tex. App.—Waco 2006, no pet.). There, the court held that:


        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 by using force



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       against the peace officer. Tex. Pen. Code Ann. § 38.03(a) (Vernon 2003). We
       recently wrote:

               The Penal Code does not provide a definition of “using force against”
               or of those terms individually. Courts have concluded that
               non-cooperation with an arrest is not an act of “use of force against”
               a peace officer under the resisting arrest statute, for example:

               •   shaking off an arresting officer’s detaining grip. Anderson
                   v. State, 707 S.W.2d 267, 269 (Tex. App.—Houston [1st Dist.]
                   1986, no pet.).
               •   pulling away from an arresting officer after being arrested. Young
                   v. State, 622 S.W.2d 99, 100–01 (Tex. Crim. App. [Panel Op.]
                   1981).
               •   crawling away from an arresting officer. Leos v. State,
                   880 S.W.2d 180, 181 (Tex. App.—Corpus Christi 1994, no pet.).

               Thus, refusing to cooperate with being arrested does not
               constitute resisting arrest by force. However, we have held that
               evidence of non-cooperation combined with violent swings of the
               body and a forward movement causing the officer and the defendant
               to fall off a porch was sufficient to establish resisting arrest. Bryant
               v. State, 923 S.W.2d 199, 206 (Tex. App.—Waco 1996, pet. ref’d).

       Campbell v. State, 128 S.W.3d 662, 671 (Tex. App.—Waco 2003, no pet.) (emphasis
       added). And courts have made the distinction between actions that endanger an
       officer (i.e. striking an arresting officer’s arm) and those actions in which there is no
       danger of injury to the officer (i.e. pulling arm away from officer). See Raymond
       v. State, 640 S.W.2d 678, 679 (Tex. App.—El Paso 1982, pet. ref’d).


Id. at 822–23. From the testimony of one of the arresting officers, the factual circumstances in

Sheehan were remarkably similar to those in the present case:


       [W]e told him that we were here to serve a warrant and he said that he had to pack
       all his stuff and we told him that the staff packs his stuff, he needed to go with us.

       He refused and when Crosby [the other officer] went to reach for his left arm, he
       stood up and pulled his hands into his chest and leaned toward the bunk bed which
       is kind of restricted. It’s a restricted area. So, I grabbed his right arm. Crosby had

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       his left hand. We moved him to the ground so he couldn’t try to run away, got his
       arms behind his back, handcuffed him and walked him outside, escorted him outside
       of the door.


Id. at 821–22. Although the defendant had obviously exerted some “force” in his effort to prevent

the officers from handcuffing him, the court characterized his actions as “passive non-cooperation”

and reversed the resisting-arrest conviction.

               In my opinion, Dobbs has not answered the question of whether the type of passive

non-cooperation seen in Sheehan—and that I believe exists in the present case—constitutes the

degree of “force against [a] peace officer” needed to support a conviction for resisting arrest under

section 38.03. I do not think it does. Accordingly, I would reverse appellant’s conviction.



                                                _____________________________________________

                                                J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Pemberton and Rose

Filed: August 28, 2014

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