### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00015- CR

William Bryan F inley, III, Ap pellant

v. The State of Texas, App ellee

F ROM TH E CO UNTY COURT AT LAW NO . 2 O F WI LLIAM SO N COUNTY NO. 11- 0176 4-2 , H ONO RAB LE TIM OTH Y L. W RIGH T, JUDGE P RESIDING

O P I N I O N

Following a bench trial, appellant Wil liam Br y an Fi n ley , I I I , was convicted of
the offe nse of resisting arr est and sentenc ed to 90 day s’ imprisonment. The trial c ourt suspended 1 imposit ion of the sentenc e and plac ed Fi n l ey on community supervision for fiftee n months. I n a single point of err or on appea l , Finley asser ts that the evidenc e is insufficient to support his conviction. We will affirm the judg ment of convic tion.

BACK GR OUND
The trial cour t h ear d evidenc e that on the morning of Marc h 5, 2011, Offic er Ging er Fuller of the L eande r Police Depa rtment (L PD) arr ived at Finley ’s residenc e to arr est his sonin-law, Dennis Boy d , for an outstanding speeding ticket, as part of a periodic “wa rra nt roundup.”

See Tex. P enal Code § 38.03. 1Acc ording to F uller, Finley answe red the door, told Fuller that Boy d was sleeping , and “re fused to

let [Fuller] speak to [Boy d]

. . . unless [Fuller] would provide him a copy of th e war rant.” Fuller
found F inley ’s attitude to be “ve ry uncooper ative,” a

nd she re quested ba ckup. Shortly there afte r, LP D Of fi cer J arr ett Rolli ns arr ived as Fuller ’s backup and L PD Corporal J ohn L auden arr ived with a copy o f the arr est war rant. Howeve r, acc ording to Fuller , Finley still “re fused to cooper ate.” Fuller explai n ed , “H e s t arte d telling us that our war rant was
false and we’ re serving a false war rant. And then he, ag ain, went back inside.” At this point, Fuller
believed the situ at i on was esca lating beca use of Finley ’s “deme anor” and how he was “not

cooper ating with us at all.” When Finley went back inside the house, he called 911 and repor ted that

L PD of fice rs “we re serving a false war rant.” I n response to this, t he off icer s on the scene decide d
to call L PD Office r Scott Connor, the war rant off icer who was supe rvising the roundup.
When Connor ar ri v ed, Fuller testified, Finley ag ain “re fused to cooper ate,” and
Connor decide d to arr est Finley for hindering t h e ap p rehension of Boy d, with the assistance of
Rolli ns. What happene d next was controve rted at trial. As we explain in more detail below, Offic ers
Fuller , Rolli ns, and Connor all testified that Finley exerted forc e in opposition to his arr est, primarily by “pulling awa

y ” from Connor and Rolli ns, while Finley and other defe nse witnesses who wer e at
the re sidence during the ar rest testified that F inley

offe red no suc h opposition.
At the conclusion of trial, the trial court found Finley g uilty o f re s i sting arr est and place d him on community supervision as noted a

bove. This appe al followed.

2STANDARD OF REVIEW
When revie wing the sufficie ncy of the evidenc e to support a conviction, we consider
al l o f t h e ev idence in the light most favor able to the finding of g uilt to deter mine whether an y
rational trier of fa ct co u l d have found the essential elements of the offe nse bey ond a rea sonable
doubt. We must consider all the evidenc e in the rec ord, whether direc t or circ umstantial or proper ly

2

or imp ro p er l y ad m i t ted. We assume that the trier of fac t resolved conflicts in the testimony , 3 weig hed the evidence, and drew rea sonable infere nces in a manner that supports the finding , and

we defe r to the trier of fac t’s deter minations of the witnesses’ cre dibilit y and the weig ht to be g iven their testimony

. 4

ANALYSIS

A person commits the offe nse of resi s t i ng arr est “if he intentionally preve nts or
obstructs a person he knows is a peac e office r
. . . from eff ecting an arr est, sear ch, or transporta tion
of the a ctor or another by using forc e ag ainst the peac e office r or another .” There is an important 5
distinction betwee n resisting arr est and evading arr est. Resisting arr est require s “‘the use of forc e.
On e who runs awa

y or makes an eff

ort to shake off the office r’s detaining g rip may b e gu i l t y

Jack son v. Virginia , 443 U.S. 307, 319 (1979). 2 Clayton v. State , 235 S.W .3d 772, 778 (Tex. Crim. App. 2007). 3
Jack son , 443 U.S. at 318; Brooks v. State , 323 S.W .3d 893, 899 (Tex. Crim. App. 2010); 4 Clayton , 235 S.W .3d at 778; see Tex. Code Crim. P roc. a rt. 38.04.
Tex. P enal Code § 38.03( a). 5
3of evading arr est under Section 38.04 [evading arr est ] , b u t he is not responsible under

[S ection 38.03].’” 6

Texas courts have not bee n in a g r e e me nt or complete clar ity reg arding the actions that
constitute “re sisting ar

rest.” At least two cour

ts of appea ls have held that the act of pulling a way 7
from an office r, in itself, is insuff icient to suppor

t a conviction for resisting arr est. Simi larly , this 8
Court, in an unpublished opinion from 2004, once sug g ested that the act of pulling awa y from an
office r, without more, would not be sufficie nt to support a conviction for resisting arr est (althoug h
in that case , there was more, as the defe ndant, during the course of resisting arr est, had drag g ed the

ar re s t i n g office r t wo feet). Howeve r, ot her courts have held that the act of pul ling away from an 9

W ashington v. State , 525 S.W .2d 189, 190 (Tex. Crim. App. 1975) (quoting Seth S. Searc y 6 I I I & James R. Patterson, Practice Comm entary , Tex. P enal Code § 38.03) ).

S ee T h o mpson v. State , 987 S.W .2d 64, 64-65 (Tex. Crim. App. 1999) (Ke ller, J ., 7 dissenting f

rom ref usal of PDR) (a cknowledg ing c onflict among courts of a ppeals).
See Raymond v. State , 640 S.W .2d 678, 679 (Tex. App

. — E l P as o 1 982, pet. ref ’d) 8 (foc using on direc tion in which forc e is employ ed and concluding that forc e must be direc ted toward
arr esting office r rathe r than used to g et awa y from office r); see also Leos v. State , 880 S.W .2d 180, 1 8 4 (Tex. App.—Corpus Christi 1994, no pet.) (following Raymond and concluding that ac t s o f “shaking off a detaining g rip” and attempti n g t o flee from arr esting office r are insufficient to support conviction for resisting ar rest). The Raymond and Leos opinions have been repe atedly criticized by other courts for focusing on the direc tion in which the forc e is applied—“towa rd” the office r as opposed to “ awa y ” from the office r. See, e.g. , Y arbrough v. State , 429 S.W .3d 118, 122 (Tex. App.—Amar illo 2014, no pet); Pumphrey v. State , 245 S.W .3d 85, 91 (Tex. App.—Texarkana 2008, pet. ref

’d); Torres v. State , 103 S.W .3d 623, 627 (Tex. App.—San Anto n i o 2 0 0 3 , no pet.); Bryant v. State , 923 S.W .2d 199, 207 (Tex. App.—Waco 1996, pet. ref ’d); see also Salgado v. State , No. 05-10-00638- CR, 2011 Tex. App. L EXI S 3299, at *7-8 (Tex

. Ap p
. —Dallas May 2, 2011,
no pet.) (not desig nated for publication). The El Paso Court of Appea ls has subsequently “disavow[ed] [i ts] lang uag e in Raymond using the word ‘towar d’ in connec tion with Section 38.03.” See H opper v. State , 86 S.W .3d 676, 679 (Tex. App.—El Paso 2002, no pet.).
See S p u rk v. State , No. 03-03-00255- CR, 2004 Tex. App. L EXI S 5534, at *7 9 (Tex. A pp.—Austin J une 24, 2004, no pet.) (mem. op., not de signa ted for publication) (upholding
4office r during an arr est could be sufficie nt, depending on the circ umstances, to support a conviction

for r esisting a

rre st. 1 0
The Texas Court of Criminal Appea ls rec ently spoke to this issue in Dobbs v. State , concluding that “the statutory lang uag e plainly require s a use of forc e direc ted ‘ag ainst’ the office r himself, not ag ainst his broade r g oal of eff ectua ting an arr est.” The court also conclude d that “the 1 1

L eg islature would have understood the phr ase ‘ using forc e ag ainst the peac e office r or anothe r’ a s meaning violence or phy sical ag g ression, or an immediate threa t there of, in the direc tion of and/or

conviction for resisting arr est beca u s e “def endant exerted a forc e that was not limit ed to the attempt to pull aw ay ”)

. I n a later unpublished opinion, this Court conclude d that evidenc e of the defe ndant’s “pushing , pulling, and shoving” of the arr esting office r, which the office r descr ibed as a “violent twistin g and turning ,” was sufficie nt to support a conviction for resisting arr est. See Martin v. State , Nos. 03-08-00400- CR & 03-08-00401- CR, 2009 Tex. App. L EXI S 5320, at *15-16 (Tex. App.—Austin J uly 10, 2009, no pet.) (mem. op., not desig nated for publication). The parties have not direc ted us to any published opinion from this Court addre ssing the issue befor e us, and we are not awar e of a

ny
. See Pumphrey , 245 S.W .3d at 91 (def endant “for ce fu l l y pulled awa y from the office r’s 1 0 restra ining g rasp,” as well as “jer ked,” “squirmed,” “twisted,” “turne d,” and “strug g led”; evidenc e sufficie nt); Torres , 103 S.W .3d at 627 (“[A] person who uses forc e in order to shake off an office r’s detaining g rip, whether by pushing or pulling , may be g uilty of resisting arr est under section 38.03.” (empha sis added) ); Luxton v. State , 941 S.W .2d 339, 340-41 (Tex. App.—For t Worth 1997, no pet.) (def endant wa s “pull ing his hands awa y ” from office rs and was also observe d “fig hting” and “strug g ling” with the m; evidenc e sufficie nt); Bryant , 923 S.W .2d at 208 (def endant “stiffe ned up” and jerke d his rig ht arm back; swung his body around, propelling him and office r to g round; and continued to hold his ri gh t ar m stiffly underne ath his body while office r handcuf fed his left arm; eviden ce s u ff

i cient); see also Ritz v. State , No. 11-12-00037- CR, 2014 Tex. App. L EXI S 1131, at *11 (Tex. A

pp.—Eastland J an. 31, 2014, no pet.) (obser ving that “pulling one’s arm awa y from
an office r’s g rasp could constitute sufficie n t fo rce within the meaning of the [resisting-a rre st] statute”); Salgado , 2011 Tex. App. L EXI S 3299, at *3-4 (defendant “pulled his arm awa y from [officer], brin gi n g his arms to the cente r of his chest and pulling ‘his whole body ’ awa y ” from office r; evidenc e suff

icient).
434 S.W .3d 166, 2014 Tex. Crim. App. L EXI S 9 08, at *11 (Tex. Crim. App. J une 25, 1 1 2014).
5into contac t with, or in opposi t i o n or hostili ty to, a peac e office r or another .” Apply ing these 1 2

conce pts to the fac ts befor e it, the court conclude d there was no evidenc e in that case that such forc e
had been used. The evidenc e in Dobbs tended to show that the defe ndant, during the course of his

arr est, threa tened to shoot hims el f wi t h a fi rea rm, was tasere d by the arr esting office r, fell to the floor, pinned one hand bene ath himself while his other hand was still holding the g un, and did not comply with the office r’s instruction to put his hands behind his back. The office r tasere d Dobbs 1 3

a second t i m e and then kicked the g un out of his hand, which enable d the office r to complete
the arres t

. The court held that this evidenc e was insufficient to sustain Dobbs’s resisting -ar rest 1 4
conviction. 1 5
Dobbs involved a unique se t of fac ts, pa rticularly a def endant who w as threatening

to shoot himself—but not the office rs—during the arr est. The case appea red to turn on the fac t that
Dobbs had n ev er threa tened to use the g un or any other ty pe of forc e ag ainst the office rs in any

manner . As the cour

t expl ained:

Her e, the rec ord indicates that appellant at all times either held the g un at his side or pointed it at hi mself, and never at o ff i ce rs or any one else. The recor d is devoid of any evidenc e to indicate that appellant threa tened to use any kind of forc e ag ainst the office rs, but instead shows that he thre atene d only to shoot himself. [The arre sting office r] indicated in his testimony that he did not fee l threa tened by appellant at any point, and no evidenc e in the rec ord sug g ests that appellant direc ted any threa t to or ag ainst [t he ar

resting office r] or any

of the other

office rs.

Id . at *10. 1 2
Id . at *3. 1 3
Id

. 1 4
Id

. 1 5
6I t is true that appellant’ s conduct in display ing the g un in the prese nce of office rs and

ref using to put the g un down when order ed to d o so could rationally be found to constitute a use of ‘for ce’ within the meaning of the statute, but without an additional showing that the forc e was direc ted at or in oppo s i tion to the office rs, he cannot rea sonably

be said to have used for ce ‘ ag ainst’ a pe ace office r. 1 6

I n the course of addre ssing the unique fac ts prese nted, the court thus indicated that the defe ndant’s
use of forc e mus t be directed “at or i n opposition to the officers” to constitute “re sisting ar re s t.” 1 7
And elsewhe re in its opinion, signific antly , the court indicated that this conce pt would inc lude “some showing of forc e that is actua lly direc ted ag ainst the office r in the sense that it is either in opposition

to the office r’s phy sical eff orts at making an arr est, such as a forceful pulling away from the officer ,

or is phy sically direc ted at or toward the office r, such as hitting or punching the office r.” The key 1 8 distinction, the court further elabor ated, is betwee n acts direc ted at or in opposition to the officer as opposed to the arrest

in and of itself. 1 9

I n this case , unlike in Dobbs , there is evid en ce fr om which a rational trier of fac t
could have rea sonably inferr ed that Finley had direc ted forc e “at or in opposition to” the office rs, as
the court of criminal appea ls seems to view it, by forc efully pulling awa y from them. Offic er Connor
testified that as he was arr esting Finley , Finley “wa s clenc hing up , p u l ling, and try ing to pull his

arm awa y from me.” Connor “could not g et him fully under control,” so Offic er Rolli ns had to assist
Connor “in try ing to g et him handcuf fed.” Connor “wa s holding onto the defe n d an t ’s rig ht arm”

Id . at *17. 1 6
See id

. 1 7
Id . at *13 (c iting Pumphrey , 245 S.W .3d at 89-90) ( emphasis adde d). 1 8
See id . at *13-15. 1 9
7while Rolli ns “g rabbe d the defe ndant’s left arm,” and Finley “kept clenc hing in t o wa rd s h i s

abdomen.” Connor continued,

So we pinned hi m u p aga i n s t the door and I started to g et his rig ht arm out from behind, but I could not g et the cuff on him beca use he was actively pulling awa y and try ing to g et awa

y from us. An d I t old him to stop resisting , and he continued to resist. And then I

—I order ed him to g et on the g round, he failed to do so and so I had to take him down to the g round and try to ga in control at that point.

Connor added, “[W ]e could not keep his hands behind his back beca use he kept pulling them out.” The prose cutor then asked Connor, “So he was actua lly pulling his ha nds awa y from—fr om y ours
and Offic er R o l lins’s attempt to g rasp him? ” Connor answe red, “Tha t is corr ect, try ing to pull

awa y from us.” The S tate also had C onnor phy sically demonstrate the arr est for the jury

. During this demonstration, the following testimony was e licited: 2 0

Q. You then ask f

or . . . the de fenda

nt to put his hands behind his bac k?
A. That’s c orre ct. Q. What happens then?
A. And when I asked him that, I g rabbe d this arm and I went t o t u rn h i m like this, and at that point that’s when he tried to turn bac k around on me

.

The rec ord does not ref

lect the g estu re s o r actions that Connor exhibi ted during the 2 0 demonstration. Howe v er , we are to view such demonstrations as supporting the finding of g uilt, eve n wh en t h ey are not transcr ibed in the rec ord. See Morales v. State , 293 S.W .3d 901, 909 (Tex. App.—Texarkana 2009, pet. ref ’d); W awryko w v. S t a te , 866 S.W .2d 87 (Tex. Ap p
. — Be aumont 1993, pet. ref ’d); Rogers v. State , 756 S.W .2d 332, 336 (Tex. A pp.—Houston [14t h Dist.] 1988, pet. ref ’d); Gaona v. State , 733 S.W .2d 611, 613-14 & n. 1 (Tex. App.—Corpus Christi 1987, pet. ref’d) . This principle would further support our ana ly sis above, a nd would arg

uably require us to affirm e ven if that a naly sis is m istaken.
8Q. Was he turning this way or turning back the way y ou’re telling me; or do y ou rec all?
A. I believe—I

believe he was try

ing to turn ba ck this way

. Q. Okay . Turning back towa rds y ou?
A. And—and so, at this point, when I was try ing to g rab this other arm he starte d to pull that one out, and then that’s when Offic er Rolli ns came over and g rabbe d his left arm. And we wer e both try ing to g et the hands in the middle of the back. He kept pulling forwa rd, so that’s when we pinned him ag ainst the door. And—and the rea son he was pinned ag ainst the door is beca use we wer e g oing to hold onto him, try to stabiliz e this arm and g et the handcuf f on him. But ever

y time we’ d g et one arm stabiliz ed he’d pull the other one out. Q. And y ou said befor e that he was moving his hands, pulling them towards his abdomen in fr ont of him?
A. That’s c orre ct. He ke pt pulling towar ds the front of him.

Offic er Rollins, at one point during his te stimony , descr ibed Finley as “strug g ling”
with Offic er Connor during the arr est, which is why Rolli ns decide d to use h i s taser on Finley

. Offic er Fuller , who had observe d the arr est, simil arly testified that there was a “scuf fle” betwee n Finley and the office rs and descr ibed Finley as “fla iling around” and “ac tively resisting ” the arr est.

As t h e S t at e acknow ledg ed both at trial and on appea l, there was no evidenc e
prese nted that Finley had attempted to hit, kick, punch, or push any of the office rs. Howeve r, there

was evidenc e prese nted that Finley had pulled awa y from the office rs, and based on the surrounding
circ umstances of the arr est as descr ibed and d em onstrated to the trial court, a rational trier of
fac t could have rea sonably inferr ed that he had done so in a forc eful manner
. These circ umstances
include the following : (1) Finley was “cle nching up, pulling, and try ing to pull his arm awa y from”
Offic er Connor; (2) when Connor g rabbe d Finley ’s arm to place him in handcuf fs and “tried to turn

9him,” Finley “tried to turn back around” on Connor; (3) Connor “could not g et [Finley ] fully under

control”; (4) two office rs wer e require d to restra in Finley ’s arms, with one office r g rabbing his left

ar m and the other office r g rabbing his rig ht arm; (5) Connor “could not g et the cuff on [Finl ey ]
beca use he was actively pulling awa y and try ing to g et awa

y from us”; (6) the office rs wer e unable
to “kee p [Finley ’s] hands behind his ba ck beca use he kept pulling them out”; (7) the office rs wer e
“both try ing to g et [Finley ’s] hands in the middle of [hi s] back,” but Finley “kept pulling forwa rd,”

preve nting them from doing so; (8) the office rs t ri ed to stabiliz e Finley ’s arm and handcuf f him,
but “eve ry

time [the office rs would] g et one arm stabiliz ed he’d pull the other one out”; (9) F inley “kept pulling” his hands toward the front of his abdomen to preve nt the officers fr o m cuff ing him; (10) the arr est was descr ibed by Rolli ns at one point during his testimony as a “strug g le” and

was descr ibed by Fuller as a “scuf fle,” with Finley “fla iling around” and “ac tively resisting ” arr est.
These circumstanc es, t he trial court could have re asonably found, t ended to show that Finley had,

among other thing s, forc efully pulled awa

y from the a

rre sting off

icer s. 2 1

As i n d i cate d above, witnesses for the defe nse, including Finley , testified that he
did not use any forc e during the arr est. Howeve r, the tr i al co u rt, as the finder of fac t, was fre e to

cre dit the testimony of the arr esting office rs and to find the testimony of the defe nse witnesses not

cre dible, and we are to defe r to the trial court’s resolution of the conflicting evidenc e in favor of the

See Dobbs , 2014 Tex. Crim. App. L EXI S 908, at *13 (ex p l ai n i ng that conviction for 2 1 resisting arr est require s “some showing of forc e that is actua lly direc ted ag ainst the office r
. . . such as a f orce ful pulling awa

y from the office r”) ; Pumphrey , 245 S.W .3d at 91 (holding that resisting

arr est conviction “must stand” when evidenc e tended to show that defe ndant “for cef ully pulled awa

y from the of

fice r’s re straining g rasp” ).
10prosec ution. Viewing the above evidenc e and all rea sonable infere nces there from in the light most 2 2
fa v o ra b l e to the finding of g uilt, we conclude that the evidenc e is sufficie nt to prove that Finle y
committed the offe nse of r esisting a rre st. 2 3
We overrule Finley ’s sole point of er ror.

CONCLUSION
We affir m the trial court’ s judgme nt of conviction.

__________________________________________ Bob Pembe rton, J ustice

Be fore Chief J ustice Jones, J ustices Pemberton a nd Rose; Dissenting O pinion by Chief J ustice Jones
Affir med Filed: Aug ust 28, 2014
Publis h

See J

ackson , 443 U.S. at 319; Brooks , 323 S.W .3d at 899. 2 2
The diss enting opinion reg ards the f actua l circumstanc es in this case a s simil ar to those 2 3 prese nted in Sheehan v . State , 201 S.W .3d 820 (Tex. App.—Waco 2006, no pet.), a case in w hich the Waco Court of Appea ls conclude d that the evidenc e was insufficient to support the defe ndant’s conviction for r esisting a

rre st. See id

. at 822. Although the circ umstances in both cases a ppear to be at least fac ially simil ar, there appea rs to be more extensive and detailed testimony in this case conce rning the circ umstances surrounding the arr est, as well as a phy sical demonstration of what had
occur red by one of the arr esting office rs. The trial court, as fact-finder , was able to observe that demonstration and draw rea sonable infere nces from it and the other ev i d en ce in this case
. And, under our standard of

revie w, we a

re to de fer

to those rea sonable infe renc es. See supra n.20.
11