Opinion filed February 8, 2024

In The

Eleventh Court of Appeals __________

No. 11-22-00242-CR

__________

ARMANDO SAUZAMEDA MENDOZA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law No. 2

Midland County, Texas

Trial Court Cause No. CR165346

M E M O R A N D U M O P I N I O N

Appellant, Armando Sauzameda Mendoza, was arrested at a bar and charged 

with resisting arrest, a Class A misdemeanor. See TEX. PENAL CODE ANN.

§ 38.03(a), (c) (West 2016). The jury found Appellant guilty, and, pursuant to the 

parties’ agreement on punishment, the trial court assessed his punishment at a $1,000 

fine. Appellant raises two issues on appeal: first, that the trial court erred in refusing 

to include a mistake-of-fact instruction in the jury charge upon Appellant’s request, 
2

and second, that the evidence was “legally insufficient to show that [Appellant] used 

force ‘against’ the officer.” We first address the second issue on sufficiency of the 

evidence. We reverse and remand for a new trial on Appellant’s first issue. 

Factual and Procedural History

On April 28, 2018, Midland Police Officer Joel Covarrubio was providing 

security while off duty at a bar in Midland County. Appellant was at the bar that 

evening, and Officer Covarrubio testified that Appellant was involved in a 

disturbance inside the bar. Appellant was escorted outside and Officer Covarrubio 

testified that he warned Appellant to leave and when he did not leave, the officer 

attempted to place him under arrest. Officer Covarrubio did not tell Appellant he 

was under arrest at that time or at any point after. Appellant did not struggle or resist 

arrest following the “take-down.”

While Appellant admitted that he tried to stop Officer Covarrubio from 

grabbing his wrists and “pulled it away,” Appellant testified that he did not know he 

was being placed under arrest and only thought he was being told to leave the 

premises. During the charge conference, Appellant’s counsel requested that the trial 

court include a mistake-of-fact instruction and presented a proposed instruction, but 

the trial court denied his request. The jury found Appellant guilty of resisting arrest

as charged in the information.

Issue Two: Sufficiency

Laying aside for the moment Appellant’s first issue—that of the trial court’s 

refusal to give a mistake-of-fact instruction to the jury, in Appellant’s second issue, 

he argues that the evidence of his “use of force against” the officer is legally 

insufficient because “merely pulling away” is not adequate force.1 Appellant argues 

1

In Appellant’s second issue he does not address, and we therefor do not address the issue of 

Appellant’s mens rea in our evidentiary analysis. Instead, we focus upon the element of “using force against 

the peace officer” per Section 38.03(a) of the Texas Penal Code.
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that because only pulling away is insufficient to constitute force, the verdict is 

contrary to the evidence. We disagree.

Standard of Review

We review a challenge to the sufficiency of the evidence under the standard 

of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 

S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288−89 

(Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all 

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 charged offense 

beyond a reasonable doubt. Jackson, 443 U.S. at 319; Zuniga v. State, 551 S.W.3d 

729, 732 (Tex. Crim. App. 2018); Brooks, 323 S.W.3d at 895; Isassi v. State, 330 

S.W.3d 633, 638 (Tex. Crim. App. 2010). 

Viewing the evidence in the light most favorable to the verdict requires that 

we consider all the evidence admitted at trial, including improperly admitted 

evidence. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. 

State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). As such, we must defer to the 

factfinder’s credibility and weight determinations because the factfinder is the sole 

judge of the witnesses’ credibility and the weight their testimony is to be afforded. 

Winfrey, 393 S.W.3d at 768; Brooks, 323 S.W.3d at 899. The Jackson standard is 

deferential and accounts for the factfinder’s duty to resolve conflicts in the 

testimony, to weigh the evidence, and to draw reasonable inferences from the facts. 

Jackson, 443 U.S. at 319; Zuniga, 551 S.W.3d at 732; Clayton, 235 S.W.3d at 778. 

We may not reevaluate the weight and credibility of the evidence to substitute our 

judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. 

Crim. App. 1999). Instead, we determine whether the necessary inferences are based 

on the combined and cumulative force of all the evidence when viewed in the light 
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most favorable to the verdict. Clement v. State, 248 S.W.3d 791, 796 (Tex. App.—

Fort Worth 2008, no pet.). Therefore, if the record supports conflicting inferences, 

we presume that the factfinder resolved the conflicts in favor of the verdict, and we 

defer to that determination. Jackson, 443 U.S. at 326; Merritt v. State, 368 S.W.3d 

516, 525−26 (Tex. Crim. App. 2012); Clayton, 235 S.W.3d at 778.

Applicable Law and Analysis

To commit the offense of resisting arrest, a person must “intentionally prevent 

or obstruct a person he knows is a peace officer . . . from effecting an arrest . . . by 

using force against the peace officer.” See PENAL § 38.03(a). The Court of Criminal 

Appeals has defined the phrase “by using force against a peace officer or another” 

as some sort of “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.” Finley v. State, 484 S.W.3d 926, 928 (Tex. Crim. App. 2016) 

(citing Dobbs v. State, 434 S.W.3d 166, 171 (Tex. Crim. App. 2014)). Even 

forcefully pulling away from an officer is enough to satisfy the “in opposition or 

hostility to” a police officer requirement. Id. 

The force must occur while the officer is attempting to effectuate an arrest, 

complete a search, or transport the actor. See PENAL § 38.03(a). In the context of 

Section 38.03, “effecting an arrest” is not an easily ascertainable moment in time. 

Black v. State, No. 04-12-00268-CR, 2013 WL 2368297, at *5 (Tex. App.—San 

Antonio May 29, 2013, no pet.) (citing Lewis v. State, 30 S.W.3d 510, 512 (Tex. 

App.—Amarillo 2000, no pet.)). “Effecting an arrest” entails a process or 

transaction and has a beginning and end, that must be determined based on the 

circumstances. Black, 2013 WL 2368297, at *5; Lewis, 30 S.W.3d at 512. 

Importantly, the intentional use of force by the defendant must exist within that 

transactional period. Black, 2013 WL 2368297, at *5; Lewis, 30 S.W.3d at 512. 
5

“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.’” Black, 2013 WL 2368297, at *5 (citing Latham v. State, 128 S.W.3d 325, 

329 (Tex. App.—Tyler 2004, no pet.)).

Here, Appellant does not dispute on appeal that he did pull away from Officer 

Covarrubio, and only argues that this act is not “force” under the law. First, the cases 

cited by Appellant to support his position that pulling away is not “force” under the 

law were all issued prior to the Court of Criminal Appeals opinion in Finley in 2016. 

See Finley, 484 S.W.3d at 928 (where even pulling away from an officer is enough 

to satisfy the “in opposition or hostility to” a peace officer requirement in the statute). 

Second, the evidence presented at trial provides support for the State’s claim that 

Appellant did pull away after Officer Covarrubio testified that he began the process 

of arresting Appellant, but before the arrest was completed. Officer Covarrubio 

testified that he attempted to take Appellant into custody, and when he grabbed 

Appellant to do so, Appellant pulled away. Appellant testified that he did not know 

he was being placed under arrest, but that testimony does not dispute that Appellant 

pulled away from the officer during his efforts to arrest.

Because the jury is the sole judge of the credibility of the evidence, the jury 

could have determined that Appellant pulled away from the officer and that—at the 

time Appellant pulled away—the officer was attempting to effect an arrest of 

Appellant. See Winfrey, 393 S.W.3d at 768; Brooks, 323 S.W.3d at 899. Thus,

under those circumstances, and assuming the required mens rea, the evidence is 

sufficient to support that Appellant used the force necessary to support his 

conviction. See Finley, 484 S.W.3d at 928. We overrule Appellant’s second issue.
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Issue One: Mistake-of-Fact Jury Instruction

In Appellant’s first issue, he complains that the trial court improperly refused 

his requested mistake-of-fact instruction. Appellant argues that if he was mistaken 

about whether he was under arrest, it would negate the necessary mental culpability 

for the offense. We agree.

Standard of Review

We review complaints of jury-charge error under a two-step process. See 

Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2004); Abdnor v. State, 871 

S.W.2d 726, 731–32 (Tex. Crim. App. 1994). First, we must determine whether 

error exists in the trial court’s charge. Wooten v. State, 400 S.W.3d 601, 606 (Tex. 

Crim. App. 2013). Second, if there is an error, we are required to determine whether 

the lack of the required instruction caused sufficient harm to require reversal of the 

conviction. Id. As a defensive issue, the defendant must request a mistake-of-fact 

instruction or object to its omission in the trial court’s charge to invoke the harm 

analysis set forth in Almanza. Williams v. State, 662 S.W.3d 452, 460 (Tex. Crim. 

App. 2021); Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998) (the trial 

court does not commit error, and Almanza does not apply, when a trial court fails to 

sua sponte instruct the jury on the defensive issue of mistake-of-fact); see Almanza v. 

State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).

It is a defense to prosecution that the defendant “through mistake formed a 

reasonable belief about a matter of fact if his mistaken belief negated the kind of 

culpability required for commission of the offense.” PENAL § 8.02(a) (West 2021). 

For this defense to apply, the defendant must have been mistaken about a specific 

historical fact that, if true, would negate the mental state required for conviction. 

See Celis v. State, 416 S.W.3d 419, 431 (Tex. Crim. App. 2013) (citing to 

Thompson v. State, 236 S.W.3d 787, 798 (Tex. Crim. App. 2007) (holding that “an 
7

instruction on mistake of fact is limited to any culpable mental state required for the 

offense.”)). A defendant’s mistaken belief that his conduct was lawful is not a 

mistake of fact for purposes of this defense. See Plummer v. State, 426 S.W.3d 122, 

128 (Tex. App.—Houston [1st Dist.] 2012), aff’d as modified, 410 S.W.3d 855 (Tex. 

Crim. App. 2013).

Upon request, a defendant is entitled to a mistake-of-fact instruction if the 

issue is raised by the evidence, even if that evidence is weak or controverted. Celis, 

416 S.W.3d at 430; Allen v. State, 253 S.W.3d 260, 267 (Tex. Crim. App. 2008). 

But if the evidence, when viewed in the light most favorable to the defendant, does 

not establish this defense, the instruction is not required. Flores v. State, 573 S.W.3d 

864, 868 (Tex. App.—Houston [1st Dist.] 2019, pet. ref’d). 

If the trial court does err in refusing a mistake-of-fact instruction, we must 

then determine whether the lack of the required instruction caused sufficient harm 

to require reversal of the conviction. Williams, 662 S.W.3d at 460–61. If the 

defendant preserved error by timely objecting to the trial court’s charge, we will 

reverse if he demonstrates that he suffered some harm as a result of the trial court’s 

error. Mendez v. State, 545 S.W.3d 548, 552 (Tex. Crim. App. 2018); Reeves v. 

State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). To determine harm, we weigh 

the following factors: (1) the jury charge as a whole, (2) the arguments of counsel, 

(3) the entirety of the evidence, and (4) any other relevant factors present in the 

record. Reeves, 420 S.W.3d at 816. Under the “some harm” standard, reversal is 

required if the error is “calculated to injure the rights of the defendant.” Almanza, 

686 S.W.2d at 171. The standard thus requires a reviewing court to examine the 

record to determine whether “actual, not just theoretical, harm” occurred. Id. at 174; 

see Cornet v. State, 417 S.W.3d 446, 449–50 (Tex. Crim. App. 2013). Even under 
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the “some harm” standard, an error will not lead to reversal if it is harmless. See

Almanza, 686 S.W.2d at 171.

Applicable Law and Analysis

 Appellant argues that the trial court improperly refused the requested 

mistake-of-fact instruction because Appellant did not possess the necessary 

mens rea to commit the offense of resisting arrest, in that he had a mistaken belief 

that he was not under arrest. Appellant successfully preserved the claimed error.

See Reeves, 420 S.W.3d at 816; Oursbourn v. State, 259 S.W.3d 159, 174 (Tex. 

Crim. App. 2008).

Under Section 38.03(a) of the Texas Penal Code, a person commits the offense 

of resisting arrest, search, or transportation if:

[H]e intentionally prevents or obstructs a person he knows is a 

peace officer or a person acting in a peace officer’s presence and 

at his direction from effecting an arrest, search, or transportation 

of the actor or another by using force against the peace officer or 

another.

PENAL § 38.03(a) (emphasis added). At trial, Appellant’s counsel objected to the 

jury charge and requested—in part—the following instruction on mistake of fact:

If you have found that the state has proved the offense beyond a 

reasonable doubt, you must next decide whether the state has 

proved the defendant did not make a mistake of fact constituting 

a defense.

To decide the issue of mistake of fact, you must determine 

whether the state has proved, beyond a reasonable doubt, that 

either --

1. the defendant did not believe officers were trying to arrest him 

when they initially grabbed at his hands; or

2. the defendant’s belief that officer [sic] were not trying to 

arrest him was not reasonable.
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. . . .

If you find that the state has failed to prove, beyond a reasonable 

doubt, either element 1 or 2 listed above, you must find the 

defendant “not guilty.”

The State responded that Appellant’s belief that the officers were not trying to arrest 

him was a credibility determination reserved for the jury. The trial court refused to 

include the instruction and noted Appellant’s exception to its ruling.

A. Jury instruction on mistake-of-fact should have been given

We conclude that Appellant was entitled to the instruction on mistake of fact 

because he raised evidence that he did not know he was being placed under arrest at 

the time he pulled away from Officer Covarrubio. See Allen, 253 S.W.3d at 267. 

Appellant testified that he was not aware he was being placed under arrest, and 

Officer Covarrubio testified he had not told Appellant he was being arrested. That 

evidence, viewed in the light most favorable to Appellant, is sufficient to entitle

Appellant to a mistake-of-fact instruction. See Allen, 253 S.W.3d at 267; Flores, 

573 S.W.3d at 868. The trial court should have granted Appellant’s request for a 

mistake-of-fact instruction, and on appeal, the State concedes this error. See Celis, 

416 S.W.3d at 430; Miller v. State, 815 S.W.2d 582, 585 (Tex. Crim. App. 1991).

B. Sufficient harm to require reversal

We next determine whether the lack of instruction caused sufficient harm to 

require reversal. As we have said, we weigh the following factors when considering 

whether the record shows that Appellant suffered “some harm”: (1) the jury charge 

as a whole, (2) the arguments of counsel, (3) the entirety of the evidence, and (4) any 

other relevant factors present in the record. Reeves, 420 S.W.3d at 816. The “some 

harm” standard is a low threshold. Navarro v. State, 469 S.W.3d 687, 700 (Tex. 

App.—Houston [14th Dist.] 2015, pet. ref’d). Neither party bears the burden on 

appeal to prove harm. Warner v. State, 245 S.W.3d 458, 462 (Tex. Crim. App.
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2008). Appellant argues on appeal that the lack of a mistake-of-fact instruction was 

fatally defective and harmful.2

The trial court’s charge permitted the jury to find that Appellant intended to 

pull away from the officer, but it did not distinguish for the jury that, in pulling away, 

if it found that Appellant did not reasonably believe that the officers’ actions were 

to arrest him, but rather were merely to require him to leave the premises, it should 

acquit the defendant. In addition, nothing in the trial court’s charge suggests that 

the jury could consider Appellant’s mistake-of-fact defense when determining 

whether he was guilty of resisting arrest. See Holloway v. State, No. 03-22-00268-

CR, 2023 WL 4981603, at *9 (Tex. App.—Austin Aug. 4, 2023, pet. ref’d). Thus, 

the first factor supports that Appellant suffered some harm by the trial court’s refusal 

to include a mistake-of-fact instruction.

Following the trial court’s refusal to include a mistake-of-fact instruction in 

the jury charge, Appellant’s closing argument focused on whether Appellant 

reasonably knew he was being arrested rather than simply removed from the bar.

Appellant stated that Paragraph No. 3 of the trial court’s charge, the definition of 

“intentionally” was “the most important part of the case.” He argued that “[i]t is 

impossible to cause the result of not -- for an officer to not arrest you if you don’t 

know that the officer is trying to arrest you. That’s what this case comes down to.” 

The State argued intent as it related to Appellant’s counterforce, not as it 

related to Appellant’s understanding of the officer’s efforts to arrest as opposed to

effectuate an exit from the bar premises. The State’s argument primarily linked the 

mens rea to Appellant’s act of pulling away, but the argument of both parties was 

2

Appellee argues that Appellant does not properly brief the harm suffered as a result of the error.

We independently assess the evidence according to the test laid out in Almanza when an appellant has 

properly preserved his claim of jury charge error at trial. See Almanza, 686 S.W.2d at 171.
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very short and, in the balance, this factor neither supports nor disputes that Appellant 

suffered “some harm” without the mistake-of-fact instruction. 

The remaining two factors—the entirety of the evidence and any additional 

relevant facts—support the conclusion that the lack of a mistake-of-fact instruction 

caused Appellant to suffer at least some harm. Officer Covarrubio testified that

after he escorted Appellant outside of the bar, he “warned” Appellant that he needed 

to leave. Officer Covarrubio’s body camera footage3 indicates that the word “warn” 

or “warning” was not used, nor was a potential consequence given by him for 

Appellant’s refusal to leave in advance of his arrest; rather, Appellant was repeatedly 

told to leave and was effectively blocked from reentering the bar. At no point during 

this interaction did Officer Covarrubio tell Appellant that he was being placed under 

arrest or that he would be arrested if he did not leave. Appellant testified that he did 

not know he was being placed under arrest and that he thought he was being escorted 

from the premises when he “pulled away” from Officer Covarrubio. Here, whether 

Appellant reasonably did not believe that he was being arrested was the key issue in 

the case. See Hill v. State, 765 S.W.2d 794, 797 (Tex. Crim. App. 1989). 

 The testimony and video evidence could support a juror’s belief that 

Appellant reasonably did not know that he was being placed under arrest at the 

time—and therefore did not possess the required mens rea for the offense of resisting 

arrest. As a result, factors three and four tend to support that Appellant suffered 

some harm by the lack of instruction given in the trial court’s charge.

 Considering the Reeves factors in weighing the issue of harm, we conclude 

that Appellant suffered some harm when the trial court refused to include the 

3

The video from the body camera contains only about thirty-two seconds with audio before the

“take-down” of Appellant by the officers at the entrance of the bar. 
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mistake-of-fact instruction in the jury charge. See Reeves, 420 S.W.3d at 816; Hill, 

765 S.W.2d at 797–98.

We sustain Appellant’s first issue. 

This Court’s Ruling

The evidence was sufficient as to Appellant’s use of force. However, we

sustained Appellant’s first issue as to the mistake-of-fact jury instruction, we reverse

the judgment of the trial court and remand the case to the trial court for a new trial.

W. BRUCE WILLIAMS

JUSTICE

February 8, 2024

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Bailey, C.J., 

Trotter, J., and Williams, J.