## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 23

- 00050

- CR

KARANYA MARQUISE DUDLEY , Appellant

V. THE STATE OF TEXAS , Appellee

On Appeal from the County Court at Law

Bowie County, Texas Trial Court No. 22M0547CCL

Before Stevens , C.J., van Cleef and Rambin , JJ. Memorandum Opinion by Chief Justice Stevens2 

### ME MORANDUM OPINION
A Bowie County jury convicted Karanya Marquise Dudley of resisting arrest , 1 and it assessed a sentence of confinement for ninety d a y s in the county jail

. In this appeal, Dudley complains that there was reversible error in the jury charge because of (1) an erroneous application paragraph and (2) the trial court’s refusal to include her requested lesser

- inclu ded

offense instru ction

. B ecau s e we find that Dudley was not egregiously harmed by the erroneous application paragraph and that she was not entitled to a lesser

- included

- offense instruction , we will affirm the trial court’s judgment.
I. Background
A t t rial , testimony an d Texarkana p o lice o f ficer Darren Jones ’ s body

- camera footage showed that Jones initiated a traffic stop after he observed that Dudley was not wearing a seatbelt

. After Dudley pulled into the parking lot of an auto parts store, Jone s further determined that Dudley d i d no t ha ve a driver’s license or automobile insurance and that her veh icle registration had expired. Whe n Jon es stepped to the rear of th e vehicle, Dudley exited the vehicle and began loudly complaining about not being able to get a driver’s license and

a utom obil e insurance , and Jones tried to calm her down

. Eventually, Jones informed Dudley that he was issu ing her tickets because she did not have a driver’s license and auto mobile insurance, issuing her warning tickets for not wearing a seatbelt and an e xpir ed v ehicle registration , and impoun ding her vehicle

. When h e asked her to sign his digital ticket writer , Dudley refused to sign it. After Jones informed her that , if she did

1 See T EX
. P ENAL C ODE A NN
. § 38.03(a).3

not sign, he had to take her to jail , 2 Dudl ey again refused to sign . Jone s repeate d his warning that , if she did not s ign, he had to take her to jail

. Dudley continued to refuse to s ign

. W hen
Jones took hold of Dudley’s arm to arrest her, she p ulled both arm s away , locked her elbows , and attempted to prevent Jones from p lacing her arm s behi nd her back. After he got both of he r arms behind her back, Dudley freed one arm , twist ed her body , and reached toward the ground for her cellp hon e. At that point, Jones placed her on the ground, put both of he r arms behind her back, and placed han dcuffs on her.
II. Standard of Review “We employ a two

- step process in our review of alle ged jur y - charge error.” Murrieta v.
State , 578 S.W.3d 552, 554 (Tex. App.

— Texarkana 2019, no pet.) (citing Abdnor v. State , 871
S. W .2d 726, 731 (Tex. Crim. App. 1994)). “Ini tially, w e determine whether error occu rred and then evaluate whether sufficient harm re sulted from the er ror to require reversal.” Id

. (quotin g Wilson v. State , 391 S.W.3d 131, 138 (Tex. App.

— Texarkana 2012, no pet.)). “[T]he jury is the exclusive judge of the fa cts, but it is bound to receiv e the law from the court and be governed t hereby. ” Id. ( alteration in original) (quoting T EX
. C ODE C RIM
. P ROC
. A NN . art. 36.13). “A trial court must submit a charge settin g forth the ‘law applicabl e to the

cas e.’” Id

. (quoting Lee v. State , 415 S.W .3d 9 1 5, 917 (Tex. App.

— Texarkana 2013, pet.

re f’d) )

. “The purpose of the jury charge . . . is to inform the jury of the applicable law and g uide them in its application. I t is not the function of the charge merely to av oid misleading or

2 The record ing from Jones’s body camera show ed that Jones to ld Dudley, “ I f you don’t sign it , you go to jail.”4

confusing the jury : i t is the function of the charge to lead a nd prev ent confusion.” Id

. (quoting
Lee , 415 S.W.3d at 917).

“ The level of harm necessary to r equire reversal due to jury cha r ge e rror is dependent upon whether the app ellant properly objected to the error.” Id. a t 55 5 (citing Ab d nor , 871 S.W.2d at 73 2 ). When the defendant “ did not object to the charge, we will not r everse [ the judgment ] unless the record shows the error resulted i n egregious harm.” Id

. (citing Ngo v. State , 175 S.W.3d 738, 743

– 44 (Tex. Crim. App

. 2005)). “Jury

- charge error is egregiou sly har mf ul if it affe cts the very basis of the case, deprives the defendant of a valuable right, or vitally a ffects a defensive th e ory.” Id

. (quoting Stuhler v. State , 218 S .W.3d 706, 719 (Tex . Crim. App. 2007)). “In making this determination, we review ‘the e nt ire jury char ge, the state of the evidence, the
argume nt o f counsel, and any other relevant informati on in the record as a whole.’” Id

. (quoting Villarreal v. State , 205 S.W.3d 103, 106 (Tex. App.

— Texarkan a 2006, pet. dism’d, untimely
fi led)). “ Direct ev idence of har m is not required to establish egregious harm .” Id

. (citing Hutch
v. State , 922 S.W.2d 166, 171 (Tex. Crim. A pp. 1996)). That said, “the record m ust sh ow that a defendant has suffered actual, rather than merely theoretical, harm fro m jury in struction err or.” Ngo v. State , 175 S.W.3d 738, 750 ( Tex. Crim. App. 2005) (citing Dickey v. State , 22 S.W.3d 490, 492 (T e x. Crim. App. 1999)).
III. Analysis A. Dudle y Was Not Harmed b y the Application
- Paragraph E rro r In her first issue, Dudley complain s that sh e was egregiously harmed because of the trial

co urt’s erron eous application paragraph

. The relevant s tatute in this case p rovides ,5

A person commits an offense if [s] he intentionally prevents or obstructs a person [s ] h e knows is a pea ce off i cer or a person acting in a pe ace officer’s presence and a t his direction f

rom effecting an arrest, search, or transpo rtation of the acto r or another by using force against t he peac e officer or another.
T EX
. P E NAL C ODE A NN
. § 38.03(a)

. Thus, t he s tatute provides t hree manners and means by which a person can com mit the off ense , i.e., by intentionally preventing or obstr u cting a person

s he knows to be a peace officer , or a per so n actin g at his direction , from effecting (1) an a rrest, (2) a search, o r (3) tra nsportation

. See Clement v. State , 248 S.W.3d 791, 801 (Te x. App.

— Fort Worth 2008, no pet.); Finster v. State , 152 S.W

. 3d 215 , 21 9 (Tex. App.

— Dallas 2004, no pet.) ; Hartis v. State , 183 S.W.3d 793, 799 (Tex. App.

— Houston [14 t h Dist.] 20 05, no pet.)

. In th is case, t he information alleged only one manner and means by which Dud ley committed an offense : by “ intentionally pre v ent [ in g ] or obstru c t [ ing ] Darren Jones, a person [ Dud le y ] knew to be a peace officer, from effecting an arrest of [Dudley] , by usi ng force against said peace officer.” Nevertheless , the application paragraph of the jury charge a uthorized the jurors to find Dudl e y guilty if they found beyond a reasonable dou bt that s he “ did then and there intenti onall y by using fo rce against o r in opposition to Darren Jones, prevent or obs truct Darren Jones, a person [ Dudley ] knew to be a peace off i cer, from effecting the arrest, search or
t ransportation of the said [Dudley]

. ” Becaus e the appl ication paragraph authori z ed convictio n on both the theory alleged in the indictment (preventing o r obstructing arrest ) , and on two theo ries

no t alleged in th e indictment (preventing or obst r ucting sear ch or transportation), the State

co nc edes th at this was jury

- c harge error. Se e Nunez v. State , 215 S.W.3 d 537 , 542 ( Tex. App.

— Waco 2007 , pet. ref’d ) ( citing Flores v. State , 48 S.W.3d 397, 402 (Tex. App.

— Waco 2 0 01, pet.6

ref’d) (“A jury charge i s fundament ally defective when it

. . . author iz es conv icti on on the theory alleged in th e indictmen t and on additional unalleged theories

. . . . ” ) )

. We agree.

“ An erroneous or incom plete jury charge, however, does not result in automatic reversal of a conviction

. ” Ab d

nor v. State , 871 S.W.3d 726 , 73 1 (Te x. Crim. App. 1994) ; see T EX
. C ODE C R I M
. P ROC
. A NN
. art. 36.19 ( In a review of jury

- charge error, “ the jud gment shall not be reversed unless the er r or appearing from the record was calculated to injur e the rights of defendant , or unless it appears f ro m the record that the defendant has no t h a d a fair and impartial trial. ”)

. For that reason , we de termine whether Dudley was reve rsibly harmed by the er r or. The abstract portion of the jury charge also pro v ide d that a person may be convicted for the of fe ns e “ if she intentionally prevents or ob str u c ts a person she knows is a peace officer or a
person ac ting in a peace officer ’ s prese nce and at his directio n from effecting an arrest, search, or transportation of the acto r or another by using force against t h e peac e officer or another. ” Like wis e, th e verdict form track ed the lan guage of the application pa ragraph

. As a result, the jury charge in it s entirety authorized a conviction if the jury found Dudley int e ntionally
p revented or obstructed Jones from e ff ecting either an arrest, a search, or tr ans p ortation. For that reason, we find th at this factor wei ghs in favor of harm. Dudley argues that , because Jones to ld her if she refused to sign the ticket she woul d go to jail , this was ev idence upon which the ju ry coul d find th at she resi s ted transportation, not arrest. However, Jon es’s testimony and the b o d y - c amera evid ence show ed that Dudley pulled
h e r arms a way, resisted Jones’s efforts to place her arms behind her back, a nd twisted her body in response to Jo ne s’s e fforts to restrain her to place her under ar rest

. Jones did not testify , and7

no other evidence showe d , that Dudley in any way resist e d her transport to jail once the arrest

was made

. Further, there w as no evide nce that Dudley resist ed any search o f her v ehicle. We
fi nd that t he state of the evid ence weighs against an y harm.
In its closing argument, the State recounted the reason for Dudley ’ s arrest , p araphrased Jones’s warnings that he would have to take her to jail if she did not sign the ticke t, and
hi ghlighted Dudley’s mult ip le refu s als to sign

. The State then argued , “ T hat’s the reason for the arrest,” a nd recount ed the evidence that showed D udley ’ s resistance to the arrest

. Dudley argued that s he ha d not used force t o resist the arrest. W e find th at the parties’ emphasis o f whether Dudley re sisted arrest weighs against any harm. In voir dire, b oth the State an d Dudley emphasized that the State’s b u rde n was to show that Dudley obstructed Jones f rom a rresti ng her by us ing force. Also, in it s opening statement, the State in fo rmed th e jury th a t the evidence would show that Dudley did not want to be arrested and t he different ways that she resisted ar r est. Dudley also spo ke to the jury about what
h appe ned bef

ore she was arrested. Th is also we ig hs agai nst any harm. Based on ou r review of this record, we find that Dudley was not egregiously harmed b y the jury

- char ge error. We overrule this issue.
B. Dudl e y Was Not Entitled to a Lesser
- Included
- Offense In struction
At the con clusion of the evidence, D udley r equested that the trial court include an
i nstruction on a lesser

- included offense , interfe r ence wi th public duti es , which the trial cour t8

denied

. 3 Dudl e y complains that the trial court erred by not i n cl uding the lesser

- inc luded

- off ense instructio n in its jury charge

.

1. Applicab l e Law and Standar d of Review Our review of all eged jury

- charge error requi res us to fi rst determine whether error occurred. Mur r ieta , 578 S.W.3d at 554

. To determine if there was jury

- ch ar ge error, we determine whether th e trial c ourt wa s requi red to g ive the requested l e sser - included

- offense instruction

. Bullo ck v. State , 509 S. W.3d 921, 924 (Tex. Crim. App. 2016 )

. “ We review a trial
court ’ s refus al to submit a [ lesser

- incl u ded

- offense ] instruction for an abuse of discr et ion. ” Chavez v. State , 666 S.W.3d 77 2, 776 ( Tex. Crim. App. 202 3 ) (citing Threadgill v. State , 146
S.W.3 d 654, 666 (Tex. Crim. App. 2004) )

.

“ Whether a defendant is e ntitled to a [lesser

- inclu ded

- offense] i n struction t urns on a two

part test. ” Id

. (cit in g R ouss eau v. State , 855 S.W.2d 666, 672 (Tex. Crim. App. 1 993) )

. “ First,
we compare t he statutory el ements of the alleged lesser off ense with the statutory elements of the greater offens e and any descripti v e averments in the indictment. ” Id

. (citing S af ian v. State , 543 S.W.3d 216, 220 (Tex. Crim. App. 2018) )

. In this part , we ask “wheth e r the lesser

- included offense is included withi n the proof necessary to establish the offense charged

. ” Safian v. Stat e , 543 S.W.3 d 216, 219

– 20 (Tex. Crim. App. 2018 ) (quotin g Rice v. State , 333 S.W.3d 140, 144 (Tex. Crim. App . 2011 ) )

. “ If proof of the l esser offense is included within proof of the grea ter offense, the first step has been satisfied. ” C h ave z , 666 S. W. 3d at 776 (citi ng Safian , 543 S.W.3d
at 220 ; T EX
. C O DE C RIM
. P ROC
. A NN . art. 37.09(1) )

.

3 See T EX
. P ENAL C ODE A NN
. § 38 .15( a) ( 1 ).9

“ Second, there must b e eviden ce from which a rati o nal jury coul d find the defendant guilty of only t he lesser offense. ” Id

. (citing Guzman v. State , 1 8 8 S .W.3d 185, 18 8

– 89 (Tex.
Cr im. App. 2006) )

. “[T] he guilty

- onl y require ment is met if there is affirmative evidence of a fa ctual di spute that raises th e lesser offen se and rebuts or negates other eviden ce establishing the greater offense. ” Id

. (citing R oy v. State , 5 09 S.W.3d 315, 31 7 (Tex. Crim. App. 2017 ) ). “ It d oe s not m atter if the factual dispute is based on direct or c ircumsta ntial evidence so lo n g as a ration al jury could interpret the record in a way in which it could find the defendant guilty o f

o nly the les se r - included of fense. ” Id

. (citing Roy , 509 S.W.3 d at 319 ; Goad v. State , 354 S.W.3d 443, 4 47

– 49 (Tex. Crim. App. 2011 ) )

. “We consider al l the evidence admitted at trial

. ” Id

. at 776

– 77 (ci ting Goad , 354 S. W.3 d at 448 )

. “ Even a scintilla of evidence is s u f ficient, no matter how controverted or incredi bl e. ” Id

. at 777 (citing Goad , 354 S.W.3d at 446

– 47 )

. Further, “it is not enough th at t h e jury may di sbelieve crucial evidence per tai ning to the greater offense, but rather there must be some e vidence dir ec t l y germane t o the lesser

- included offense for t he f inder of fact to consider before an instruction on a lesser

- inclu ded offense is w arra n ted.” Ransie r v. State , 670 S .W.3d 646, 6 50 (Tex. Crim. App. 2023) (quoting Bullock , 509 S.W.3d at 92 5). For that re a s on, the Tex as Court of Criminal Appeals has “ s ta te d tha t the standard may be satisfied if some evidence refutes or negates other ev iden c e establishin g the greater off ense or if t he evidence presented is subject to different interpretations.” Bullock , 50 9 S.W.3d at 9 25 (quoting Sweed v. State , 351 S.W .3 d 63, 6 8 (Tex. Crim. App. 2011) ); see Ransier , 670 S.W.3d at 650

.10 2. A nalysis
Because the p arties do not dispute that interference with public dut ies is a lesser

- included offense of resisting arrest under th e f irst part of the te st, w e will assume that it i s a lesse r included offense in this case and analyze only the second part of the lesse r - included

- offense test

. See Chavez , 66 6 S.W.3d at 777

. Un d er the indict ment, the elements t hat the Sta te was require d
t o prove unde r the charged offense were that Dud le y (1) i nt entionally (2) prevented or obstructed (3) Jones, (4) who m she knew to be a police officer , (5) from effecting an arr est of Dudley (6) b y using force against Jones. See T EX
. P E NAL C ODE A NN
. § 38 .0 3 (a). As app licable to this case, the elements of interf

er ence with public duties were that Dudley , (1 ) with criminal negligence , (3) interrupt ed , dis rupt ed , impede d , or otherw ise interfered with ( 4) a peace officer , Jones, (5) wh ile Jon es w as performin g a duty or exe rcising authority imposed or grante d by law. Se e T EX
. P ENAL C ODE A NN
. § 38.15(a)(1). In addition to requiring proof of a greater culpable men tal stat e 4 than interf erence with pub lic d u ties , resisting arrest requires t he proof of an addition al element , i.e ., the u se of force against the off

ic er. Du dley points to the following portions of Jones’s testi mony: [ O ]nce she refuse d the second time to sign the citation, I had to make an a rrest

. When I went to lay ha nds to get her hands behind her t o w here I could start c uffin g her, she immediately s tarted kind of pulling away from me , strong

arming, locking h er arms down a nd not le tting me move h er. I do everything I can to not hurt her. I h a ve to make the arrest, but I don ’ t have to be

-- I don ’ t h a ve to use ex cessive force , if that makes sense. I ’ m try ing t o use as little forc e as I have to to place her i n cuffs. She is p ullin g away from me . I do have to grip a little hard on her han ds a n d make sure she don’t get away from me . But

-- . A nd

4 See T E X
. C ODE C RIM
. P ROC
. A NN
. art 37.0 9(3) (providing that “[a]n offe nse is a lesser inclu ded offense if

. . . i t differs from the offense charged only in the respect that a less culpable mental stat e suffices to establish its commission ”).11

t ha t ’ s wh y I ’ ve got her u p aga inst the car. I f inal ly get he r ha n ds behind her back. I have her leaned up against the car. And I go

-- . I tell her to relax, and I go to get my handcuffs that we re a t my back. And when I go to get my handcuffs, my h an ds a r e at my back, she slip s her left arm out

-- or h er arm ou t and reaches up. I assume reaches for her phone. At that time, I had to ba sicall y get control. And that ’ s why I had to take her

-- pl ace h er on the ground where I would have more control o f he r m oveme nts. I was able to pl ace her into hand cu ff s there. And to the following exchange:

Q. [ ( B y the State ) ] And then wh en you went to effec t arrest on her, is that w hen she began t o fight you ?
A

. She began to pull away from me by strong

- arming, by s ti f f

- arm ing , which is when I had to fin ally get her hands be hind her back. Dudley argues that the jury could have only believed the f irs t part of Jones’s stat ement, i.e., tha t Dudley pulled away from h im, which, she argues, would support a conviction for in t e rfer enc e with public dut ies , as opposed to a co nviction for resisting arrest that requires the use of forc e. We disagree. Dudley’ s a rgument is premised on the assumption that pulling away f rom an o fficer who is attempting to make an arrest is not usi ng force aga inst th e officer. Howev er, u nder f acts similar to the f

acts in this case, 5 the Texas Court of Criminal Appeals held that pulling awa y from officers while they were effecti ng an arrest constitute d t h e “ use of force against the office r ”
requ irem en t of r esistin g arres t

. Finley , 484 S.W.3d at 92 8

. We have also h eld tha t , “when the defendant actively pulls against an officer’ s est abli shed gra sp of the defendant during an arrest attempt , ” the “ use of force a g ainst an office r ” elem ent of r esisti ng a rr e st is satisfied. Pumphrey

5 I n Fi n l e y , th e officer testified that , whe n he grabb ed F inley’s arm to pl ace b ehind his back , “ Finl ey failed ‘ to cooperate an d pull[ed] his arms away from [them]

. ’ Spec ifically, Officer Connor testified that Finley t ensed up and pulled his arms away from t he a rr e sti n g offi cers and towards Finley’s ab domen. ” F inley v. State , 4 84 S.W.3d 926, 927 (Tex. Crim. App. 2016) ( first a lteration in original)

.12

v. State , 245 S.W .3d 85 , 89 ( Tex. App.

— Texarkana 2008 , pet . ref ’ d ) (footnote omitted) (citation omitted)

. Bec ause pul ling away from an officer’s attempt to ma ke an arrest satisfies the “ use of force ” requirem ent of r esis ting a rrest , a rational jury could not find that Du dley was guilt y only of interferen ce with public duties. See Chavez , 666 S.W.3d at 776. As a result, D udley was not entitled to a lesser

- inc luded

- offense instruct ion . For that reason, we f ind that t he t rial c o urt d id not abuse its discretion in refusing to submit a lesser

- i ncluded

- offense instruction in its jury charge

. We overrule this issue. IV. Conclu s ion For the reasons stated, we affirm the trial court’s judgment.

Scott E. Stevens Chief Justice
Date S ubmi t t e d: No vem ber 7, 2 023 Date Decided: November 15 , 202 3 Do Not Pub l ish