                                   NO. 07-07-0023-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                  APRIL 18, 2008
                         ______________________________

                            RONNIE L. TOLER, APPELLANT

                                            V.

                         THE STATE OF TEXAS, APPELLEE
                       _________________________________

             FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

        NO. 2006-412899; HONORABLE BRADLEY S. UNDERWOOD, JUDGE
                      _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION


       Appellant, Ronnie L. Toler, appeals his conviction for assault on a peace officer,

twice enhanced, and sentence of 40 years incarceration in the Institutional Division of the

Texas Department of Criminal Justice, contending that the evidence is legally insufficient.

We affirm.
                                       Background


       On May 18, 2006, Lubbock police officers Michael Chavez and Jacob Flores were

conducting surveillance in a neighborhood where Officer Chavez had previously made

narcotic-related arrests . While doing surveillance, Chavez and Flores observed appellant,

who had binoculars, approach the driverside window of a vehicle that was stopped in the

middle of the street. When appellant saw the officers, he immediately stepped away from

the vehicle and begin walking away. Officer Chavez yelled out to appellant to stop but

appellant continued to walk away. As Officer Chavez continued to pursue appellant,

appellant turned around and stated that he had not done anything. However, Officer

Chavez, believing that appellant may have been involved in narcotic trafficking, detained

appellant. Because appellant did not have any identification, Officer Chavez decided to

take appellant to the police vehicle in order to be able to identify him as well as pat him

down for weapons. Once Officer Chavez began the pat down, appellant became agitated

and did not allow Officer Chavez to pat him down. Because of appellant’s agitated state,

Officer Chavez decided to handcuff appellant, but appellant became uncooperative, pulled

away, and ran away from Officer Chavez. During the ensuing chase, both officers used

their tasers and batons to subdue appellant and eventually handcuffed appellant. It was

during this chase that appellant, in attempting to elude the police, struck Officer Flores in

the face with a closed fist. Appellant was arrested and charged with assault on a public

servant, enhanced by two prior felonies.


       After a jury trial, appellant was found guilty and sentenced to 40 years confinement

in the Institutional Division of the Texas Department of Criminal Justice. Appellant appeals

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his conviction and sentence contending that the evidence is legally insufficient to uphold

his conviction because the State failed to demonstrate that Officer Flores was lawfully

discharging an official duty.


                                    Standard of Review


       In assessing the legal sufficiency of the evidence, we review all the evidence in the

light most favorable to the verdict to determine whether any rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Ross v. State, 133

S.W.3d 618, 620 (Tex.Crim.App. 2004). In conducting a legal sufficiency review, an

appellate court may not sit as a thirteenth juror, but rather must uphold the jury’s verdict

unless it is irrational or unsupported by more than a mere modicum of evidence. Moreno

v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988).


       A police officer’s interaction with a citizen can be classified as an encounter,

detention, or seizure. See Citizen v. State, 39 S.W.3d 367, 370 (Tex.App.–Houston [1st

Dist.] 2001, no pet.). Encounters occur when police officers approach an individual in

public to ask questions. Id. Encounters do not require any justification whatsoever on the

part of an officer. Id. (citing U.S v. Mendenhall, 446 U.S. 544, 555, 100 S.Ct. 1870, 64

L.Ed.2d 497 (1980)). An investigative detention is a confrontation of a citizen by law

enforcement officers wherein a citizen yields to a display of authority and is temporarily

detained for purposes of an investigation. Johnson v. State, 912 S.W.2d 227, 235

(Tex.Crim.App.1995).     An investigative detention is permitted if it is supported by


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reasonable suspicion. Citizen, 39 S.W.3d at 370. See also Terry v. Ohio, 392 U.S. 1, 27,

88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Reasonable suspicion is a particularized and

objective basis for suspecting the person is, has been, or soon will be engaged in criminal

activity. Citizen, 39 S.W.3d at 370 (citing Crockett v. State, 803 S.W.2d 308, 311

(Tex.Crim.App.1991)). A determination of whether the police interaction is an encounter,

detention or seizure is assessed by looking at the totality of the circumstances. See Hunter

v. State, 955 S.W.2d 102, 104 (Tex.Crim.App. 1997).


                                     Law and Analysis


       Appellant complains that the officer did not have reasonable suspicion to stop him

and, thus, was not performing an official duty. Hence, appellant contends that the

evidence does not support the conviction because the officer was not lawfully discharging

an official duty. See TEX . PENAL CODE ANN . § 22.01(b)(1) (Vernon Supp. 2007). However,

the officers testified to surveillance of the location where appellant was arrested.

According to the officers, because of the time of night, the previous narcotic-related

arrests, information received by the police department of narcotic trafficking in the area,

the amount of traffic at that time of night, the vehicle parked in the middle of the road, and

appellant’s possession of binoculars, the officers testified that they sought to detain

appellant for questioning related to drug activity. At this point, the officers had reasonable

suspicion to detain appellant for investigative purposes. See Citizen, 39 S.W.3d at 370.

However, even if the officers did not have reasonable suspicion for lawfully detaining

appellant, the officers were still performing their official duty because a police officer is

acting within the lawful discharge of his official duties so long as he is acting within his

                                              4
capacity as a peace officer. See Hughes v. State, 897 S.W.2d 285, 298 (Tex.Crim.App.

1994). See also Hall v. State, 158 S.W.3d 470, 475 n.16 (Tex.Crim.App. 2005). In this

case, the officers were in uniform, on duty, and in a marked vehicle performing a duty, i.e.

surveillance, in their capacity as peace officers. See Hughes, 897 S.W.2d at 298. If

appellant felt that he was being unlawfully detained, searched or arrested, the proper forum

for raising the issue is in the courtroom, not on the street. See White v. State, 601 S.W.2d

364, 366 (Tex.Crim.App. 1980). Nevertheless, at the point that appellant physically

resisted the pat down and broke free of Officer Chavez’s grip, he became culpable for the

offense of resisting arrest. See Cook v. State, 1 S.W.3d 718, 721 (Tex.App.–El Paso

1999, pet. ref’d). Therefore, whether or not the officers had reasonable suspicion for the

detention, at the point that appellant resisted Officer Chavez’s pat down and instead

decided to break free and flee, appellant had committed the criminal offense of resisting

arrest. At that point, Officer Flores, in chasing and detaining appellant, was performing his

official duty in apprehending a person who had committed a criminal offense in his

presence. See TEX . CODE CRIM . PROC . ANN . art. 14.01(b) (Vernon 2005). Hence, having

reviewed the evidence in the light most favorable to the verdict to determine whether any

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

reasonable doubt, we conclude that the evidence is legally sufficient to uphold appellant’s

conviction. We, therefore, overrule appellant’s issue.




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                                     Conclusion


      For the foregoing reasons, we affirm.




                                              Mackey K. Hancock
                                                  Justice




Do not publish.




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