      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-03-00533-CR



                               Carolyn Machalec Barnes, Appellant

                                                   v.

                                    The State of Texas, Appellee




          FROM THE COUNTY COURT AT LAW NO. 1 OF WILLIAMSON COUNTY
           NO. 02-1777-1, HONORABLE WILLIAM E. BENDER, JUDGE PRESIDING



                                            OPINION


                A jury found appellant Carolyn Machalec Barnes guilty of interfering with a peace

officer and assessed a thirty-day jail term and a $1000 fine. See Tex. Pen. Code Ann. § 38.15 (West

2003). On the jury’s recommendation, the trial court suspended imposition of sentence and placed

appellant on community supervision. We will sustain appellant’s contention that the evidence is

legally insufficient to support the verdict, reverse the judgment of conviction, and render an acquittal.

Because of our disposition of the evidence sufficiency point, we do not reach appellant’s other

contentions.


                                        Factual Background

                On March 6, 2002, Department of Public Safety Trooper Mark Koenig stopped

appellant’s pickup truck for speeding. Appellant’s seven-year-old son was also in the truck.
Because of busy highway traffic, Koenig approached appellant’s vehicle on the passenger side and

opened the door to speak to appellant. He testified that he opened the door because of the noise of

the truck’s diesel engine and because “it appeared that the driver was signaling for me to open the

door, that they couldn’t reach it.” The opening of her truck’s door angered appellant, who began to

berate the officer about the stop and his conduct. Koenig closed the truck’s door and continued to

speak to appellant through the open passenger window. He then returned to his patrol car to verify

appellant’s identity.

               As Koenig sat in his patrol car, appellant’s truck began to slowly move forward and

to the right, away from the lanes of traffic. Koenig called for assistance, then he returned to the

pickup, ordered appellant to stop, and instructed her to get out of the truck. Appellant stopped

moving forward but remained inside the truck. To prevent appellant’s further movement, one of the

officers who responded to Koenig’s call for assistance, Deputy Ralph Fisher, parked his patrol

vehicle in front of appellant’s truck and Koenig moved his vehicle forward to appellant’s back

bumper.

               Appellant did not comply with Koenig’s repeated requests to open her windows,

unlock her doors, and accept the speeding citation. She also refused to get out of her truck or to turn

off the truck’s engine. For the most part, she ignored the officers; at one point, she appeared to be

reading a book. About ten minutes into the incident, appellant began searching in her purse and

under her seat. Koenig, fearing that appellant was reaching for a weapon, drew his service weapon,

pointed it at appellant, and ordered her to show her hands. Koenig repeatedly asked appellant to

keep her hands in view throughout the remainder of the incident.



                                                  2
                Approximately forty minutes after the stop, and after consulting by phone with a

superior officer, Koenig advised appellant that she was under arrest for evading arrest and refusing

to accept the speeding citation. He then broke a window in appellant’s truck and opened the doors.

Koenig restrained appellant while Fisher attempted to restrain appellant’s son. Appellant shouted

for the boy to run. He first turned as if to run onto the highway, then ran to a nearby gas station

where he was stopped by a civilian.

                The entire incident was videotaped by a camera in Koenig’s patrol car. The tape, with

some edits made in response to appellant’s objections, was shown to the jury.


                                         Legal Background

                “A person commits an offense if the person with criminal negligence interrupts,

disrupts, impedes, or otherwise interferes with a peace officer while the peace officer is performing

a duty or exercising authority imposed or granted by law.” Tex. Pen. Code Ann. § 38.15(a)(1).1 A

person is criminally negligent with respect to the result of her conduct when she ought to be aware

of a substantial and unjustifiable risk that the result will occur. Id. § 6.03(d).

                In April 2002, a complaint and information were filed alleging that on or about March

6, 2002, appellant:




  1
    Section 38.15 also proscribes interference with persons performing emergency medical services,
fire fighters who are fighting or investigating a fire, animals being used for law enforcement or
related purposes, and emergency radio transmissions. Tex. Pen. Code Ann. § 38.15(a)(2)-(5) (West
2003).

                                                   3
       did then and there while M. Koenig, a peace officer, was performing a duty or
       exercising authority imposed or granted by law, to wit: issuing a traffic citation, with
       criminal negligence, interrupt, disrupt, impede, or interfere with the said M. Koenig
       by refusing to comply with M. Koenig’s lawful order to roll down her window or
       unlock and open her door.


On June 23, 2003, the day appellant’s trial was set to begin, the State moved to amend the

information. The motion was granted over appellant’s objection. The court’s order granting the

motion reads as follows:


               Having heard the State’s motion to amend the information, it is hereby
       ordered that the information in the above-entitled cause be amended to read as
       follows: to delete on the filed information the paragraph beginning “while M.
       Koenig, a peace officer” and ending with “open her door” and replace it with the
       following: “with criminal negligence interrupt, disrupt, impede, and otherwise
       interfere with the said M. Koenig by driving her vehicle forward while the said
       defendant was lawfully detained; and by directing her minor child to leave her
       vehicle and run in an area near traffic; and by continuously refusing to obey orders
       regarding officer safety, while M. Koenig, a peace officer, was performing a duty or
       exercising authority imposed or granted by law, to wit: to preserve the peace within
       the officer’s jurisdiction.”


After granting the motion to amend, the court reset the cause for trial in August 2003.2

               In its charge, the court authorized appellant’s conviction if the jury found beyond a

reasonable doubt that she:




  2
     Appellant raises several challenges to the court’s grant of the motion to amend. For the purpose
of this opinion, we will assume that the information was effectively amended.

                                                  4
       with criminal negligence interrupt[ed], disrupt[ed], impede[d], and otherwise
       interfere[d] with M. Koenig by driving her vehicle forward while [she] was lawfully
       detained; and/or by directing her minor child to leave her vehicle and run in an area
       near fast-moving traffic; and/or by continuously refusing to obey orders regarding
       officer safety, while M. Koenig, a peace officer, was performing a duty or exercising
       authority imposed or granted by law, to wit: to preserve the peace within the
       officer’s jurisdiction . . . .


The court further instructed the jury:


               It is the duty of every peace officer to preserve the public peace within the
       officer’s jurisdiction. To effect this purpose, the officer shall employ all lawful
       means. The officer shall in every case authorized by law interfere without warrant
       to prevent or suppress crime, and shall arrest offenders without warrant in every case
       where the officer is authorized by law.


See Tex. Code Crim. Proc. Ann. art. 2.13(a), (b)(1), (4) (West Supp. 2004-05). The charge went on

to inform the jury that an officer may detain a person who the officer reasonably believes has

committed a traffic violation, and that an officer may arrest a person for speeding if that person

refuses to make a written promise to appear. See Tex. Transp. Code Ann. § 543.001 (West 1999),

§§ 543.004(a), .005 (West Supp. 2004-05). In other words, the jury was instructed to convict

appellant on a finding that her alleged conduct had negligently interrupted, disrupted, impeded, and

otherwise interfered with her detention or arrest for speeding.


                                         Sufficiency of Evidence

               Appellant contends that the evidence is legally insufficient to sustain her conviction.

In a legal sufficiency challenge, the evidence is viewed in the light most favorable to the verdict to

determine whether a rational trier of fact could have found the essential elements of the offense



                                                   5
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324 (1979); Griffin v. State, 614

S.W.2d 155, 158-59 (Tex. Crim. App. 1981). All evidence before the jury, whether rightly or

wrongly admitted, is considered. Camarillo v. State, 82 S.W.3d 529, 537 (Tex. App.—Austin 2002,

no pet.). When alternative theories of committing the same offense are submitted to the jury in the

disjunctive and the jury returns a general verdict of guilty, the verdict will be sustained if the

evidence is sufficient to support a finding of guilt under any of the theories submitted. Kitchens v.

State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991).

               Appellant’s prosecution rests on her lack of cooperation with Officer Koenig as he

attempted to cite her for speeding. Although traffic law violations ordinarily result only in a written

citation, a violator is subject to warrantless custodial arrest if she refuses to make a written promise

to appear. Tex. Transp. Code Ann. §§ 543.001, .005. Even a person who is stopped for

speeding—who by statute must be issued a citation—may be taken into custody if she refuses to

make a written promise to appear. Id. § 543.004(a). Thus, under the transportation code, the

consequence for a driver who refuses to accept citation is immediate custodial arrest for the traffic

offense. We do not believe that a traffic law violator who directly or indirectly refuses citation may

also be prosecuted under section 38.15 on the theory that the refusal disrupts, impedes, or otherwise

interferes with the officer’s performance of his official duties. The transportation code authority to

arrest for a traffic offense would be unnecessary if an officer could arrest a traffic offender for

violating section 38.15 under these circumstances.

               Moreover, on this record, no rational trier of fact could find beyond a reasonable

doubt that appellant negligently interrupted, disrupted, impeded, or otherwise interfered with her



                                                   6
detention or arrest “by directing her minor child to leave her vehicle and run in an area near fast-

moving traffic.” The only evidence supporting this theory of the offense, appellant shouting to her

son to run after the officers broke into her truck, consists of speech only and cannot serve as the basis

for a conviction under section 38.15. See Tex. Pen. Code Ann. § 38.15(d).

                Further, no rational trier of fact could find beyond a reasonable doubt that appellant

negligently interrupted, disrupted, impeded, or otherwise interfered with her detention or arrest for

speeding “by driving her vehicle forward while she was lawfully detained.” Appellant had already

been detained when she moved her truck forward, and that status was not affected by this conduct.

This conduct did not interfere with appellant’s arrest because the evidence shows without dispute

that the officer was not attempting to arrest appellant at the time she moved forward; the decision

to make a custodial arrest came much later in the incident.

                Finally, no rational trier of fact could find beyond a reasonable doubt that appellant

negligently interrupted, disrupted, impeded, or otherwise interfered with her detention or arrest for

speeding “by continuously refusing to obey orders regarding officer safety.” The only evidence

supporting this allegation is that Koenig repeatedly ordered appellant to keep her hands visible.

Koenig testified that these orders were prompted by appellant rummaging through her purse and

under the seat of her truck, which led him to fear that she might be reaching for a weapon.3 But once

again, appellant had already been detained, and the decision to arrest had not been made. There is

no basis in the record for concluding that the need to repeatedly order appellant to keep her hands

visible interfered with either her detention or her arrest.


   3
       There is no evidence that appellant had a weapon in the truck.

                                                   7
               We hold that the evidence is legally insufficient to sustain appellant’s conviction,

reverse the judgment of conviction, and render a judgment of acquittal. See Burks v. United States,

437 U.S. 1, 15-18 (1978); Greene v. Massey, 437 U.S. 19, 24-27 (1978); Tex. R. App. P. 43.2(c).




                                             ___________________________________________

                                             David Puryear, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Reversed and Rendered

Filed: May 26, 2005

Publish




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