ORAL ARGUMENT REQUESTED ONLY

IF REQUESTED BY APPELLANT

No. 06-14-00150-CR

IN THE SIXTH COURT OF APPEALS 

TEXARKANA, TEXAS

________________ 

TIM PETTY, 

 Appellant 

v. 

THE STATE OF TEXAS, 

 Appellee 

________________ 

On Appeal in Cause No. CR-12-24244 

From the 336THJudicial District Court

of Fannin County, Texas 

__________________________________________________________________ 

STATE’S BRIEF __________________________________________________________________ 

John B. Setterberg 

State Bar No. 24043915 

Assistant Criminal District Attorney 

Fannin County, Texas 

101 E. Sam Rayburn Dr., Ste. 301 

Bonham, Texas 75418 

903-583-7448 

903-583-7682 (fax) 

ATTORNEY FOR THE STATE 

ACCEPTED

06-14-00150-CR

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

1/6/2015 1:31:33 PM

DEBBIE AUTREY

CLERK

 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 1/8/2015 4:23:00 PM DEBBIE AUTREY Clerk
i

IDENTITY OF PARTIES AND COUNSEL

The State certifies that the following is a complete list of the parties, 

attorneys, and other persons with interest in the outcome of this case: 

(1) John B. Setterberg, Assistant Criminal District Attorney, Fannin County, 

Texas, 101 East Sam Rayburn Drive, Suite 301, Bonham, Texas 75418; 

ATTORNEY FOR THE STATE OF TEXAS.

(2) Micah Belden, 711 North Travis, Sherman, Texas 75090; TRIAL AND 

APPELLATE ATTORNEY FOR APPELLANT.

(3) Timothy Earl Petty, TDCJ #01945203, Hutchins Unit, 1500 East Langdon 

Rd., Dallas, Texas 75241; APPELLANT.
ii

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ............................................................ i

TABLE OF CONTENTS.......................................................................................... ii

INDEX OF AUTHORITIES.................................................................................... iii

STATEMENT OF FACTS ........................................................................................1

SUMMARY OF THE ARGUMENT ........................................................................2

ARGUMENT.............................................................................................................3

The evidence was sufficient to show that Appellant forcefully resisted 

officers as they tried to arrest him..........................................................................3

CONCLUSION..........................................................................................................6

PRAYER....................................................................................................................6

CERTIFICATE OF COMPLIANCE.........................................................................7

CERTIFICATE OF SERVICE ..................................................................................7
iii

INDEX OF AUTHORITIES

Cases

Amado v. State, 983 S.W.2d 330 (Tex. App. – Houston 1999).............................3, 4

Dobbs v. State, 434 S.W.3d 166 (Tex. Crim. App. 2014).....................................4, 5

Goodman v. State, 66 S.W.3d 283 (Tex. Crim. App. 2000)......................................5

Little v. State, 376 S.W.3d 217 (Tex. App. – Fort Worth 2012) ...............................3

Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990)...............................4

Rickels v. State, 202 S.W.3d 759 (Tex. Crim. App. 2009)........................................4

Statutes

TEX. CODE CRIM. PRO. Art. 42.12 § 5(b)...................................................................3

TEX. PENAL CODE § 38.03(a).....................................................................................4
No. 06-14-00150-CR

IN THE SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

________________

TIM PETTY,

Appellant

v.

THE STATE OF TEXAS,

Appellee

________________

TO THE HONORABLE JUSTICES OF THE SIXTH COURT OF APPEALS:

COMES NOW the State of Texas, by and through her assistant criminal 

district attorney, and respectfully submits this brief in the above-styled and 

numbered cause. This is an appeal from an adjudication of guilt following a 

deferred probation; the underlying offense was aggravated assault with a deadly 

weapon (Cl. R. at 44). Upon adjudicating Appellant guilty of the offense, the trial 

court sentenced him to serve seven years in prison (Cl. R. at 125).

STATEMENT OF FACTS

On June 5, 2013, Appellant pled guilty and was given deferred probation for 

the offense of aggravated assault with a deadly weapon (Cl. R. at 44). On March 

21, 2014, the State filed a motion to adjudicate guilt alleging violations of the 

Appellant’s community supervision (Cl. R. at 47). When officers from the Bonham 
2

Police Department went to arrest the Appellant for these violations, he struggled 

with and forcefully resisted their arrest. The officers testified that Appellant 

forcefully pulled away from their grasp, that there was a struggle that lasted

anywhere from 20 seconds to a minute, and that it took two of them to subdue him 

(Ct. R. vol. 2, at 30-32, 36-39). Moreover, one of the officers testified that during 

the struggle, Appellant balled up his fist and reared back as if to strike the other 

arresting officer, and that this prompted the officer to apply a choke hold and a 

burst of pepper spray to the Appellant’s eyes (Ct. R. vol. 2, at 37). Additionally, a 

neighbor who witnessed the event testified that the Appellant fought the officers 

even after he was placed in handcuffs, and that he was able to break free by 

leveling his shoulder into one of the officers and striking him in the chest or 

midsection with his elbow (Ct. R. vol. 2, at 50-52). Based on this testimony, the 

trial court found the allegation of resisting arrest to be true and sentenced 

Appellant to seven years in the Texas Department of Criminal Justice, Institutional 

Division (Ct. R. vol. 3, at 144, 170-71).

SUMMARY OF THE ARGUMENT

Appellant’s sole point of error attacks the sufficiency of the evidence to 

support the State’s allegation of resisting arrest. This point fails, however, because 

there was direct testimony that the Appellant forcefully resisted and acted as if he 

would strike the arresting officers, as well as testimony that he physically struck or 
3

pushed the officers after he was initially detained. Appellant’s argument 

essentially asks this court to revisit the trial court’s determinations of credibility 

and weight, and to balance differing eyewitness accounts that have already been 

considered and resolved by the trial court. Those are discretionary findings that rest 

solely with the trier of fact, and it is this Court’s responsibility to defer to those 

findings. Because the trial court chose to believe evidence supporting the State’s 

allegation, and because that evidence establishes every element of the allegation, 

the evidence is legally sufficient to support Appellant’s conviction, and his point 

should be overruled.

ARGUMENT

The evidence was sufficient to show that Appellant forcefully resisted officers 

as they tried to arrest him.

In a hearing on a motion to revoke probation or adjudicate guilt1 the State 

must prove each and every element of the grounds asserted for revocation by a 

preponderance of the evidence. Amado v. State, 983 S.W.2d 330, 332 (Tex. App. –

Houston 1999, pet. ref’d). This means that the greater weight of the credible 

evidence creates a reasonable belief in the mind of the fact-finder that the 

defendant has violated a condition of his probation. Rickels v. State, 202 S.W.3d 

 1 The decision to proceed to an adjudication of guilt and revoke deferred adjudication community 

supervision is reviewable in the same manner as a revocation of ordinary community 

supervision. TEX. CODE CRIM. PRO. Art. 42.12 § 5(b); see also Little v. State, 376 S.W.3d 217, 

219 (Tex. App. – Fort Worth 2012, pet. ref’d).
4

759, 763-64 (Tex. Crim. App. 2009). The trial court acts as the sole trier of fact 

and may judge the credibility and weight of the testimony. Amado, 983 S.W.2d at 

332. On appeal, the court of appeal must view the evidence in the light most 

favorable to the trial court’s ruling, id., meaning that a reviewing court is required 

to defer to that court’s credibility and weight determinations. See Brooks v. State, 

323 S.W.3d 893, 899 (Tex. Crim. App. 2010). A trial court’s ruling on a motion to 

adjudicate is reviewed for an abuse of discretion,

2 and that ruling will not be 

disturbed unless it is arbitrary, unreasonable, or without reference to any guiding 

rules or legal principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. 

App. 1990).

As a condition of his probation, Appellant was prohibited from committing 

any offense against the laws of the State of Texas (Cl. R. at 41). Under Texas law, 

a person commits the offense of resisting arrest if he intentionally prevents or 

obstructs a person he knows to be a peace officer from effecting an arrest, search, 

or transportation of the actor by using force against the peace officer. TEX. PENAL 

CODE § 38.03(a). The phrase, “using force against a peace officer,” means 

“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.” Dobbs v. 

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

 2 Rickels, 202 S.W.3d at 763-64.
5

In this case, both officers testified that Appellant resisted and struggled with 

them for several seconds as they tried to arrest him. Additionally, Cpl. Brookshire 

testified that Appellant raised a fist as if to strike Officer Cunningham. This, in 

and of itself, is sufficient evidence to support the conclusion that the Appellant 

used “violence or physical aggression, or an immediate threat thereof,” against a 

peace officer. See Dobbs, 434 S.W.3d at 171. Direct evidence of a fact is always 

legally sufficient to prove that fact. Goodman v. State, 66 S.W.3d 283 (Tex. Crim. 

App. 2000). Moreover, Daniel Pinion testified that he saw Appellant struggle with 

and charge the officers after he was handcuffed, and that the Appellant was able to 

tackle one of the officers to the ground. This too is legally sufficient to support a 

finding that Appellant resisted arrest. 

Appellant essentially asks this court to revisit the trial court’s findings as to 

the weight and credibility of the evidence, and to resolve inconsistencies in the 

testimony de novo, but this is not an appellate court’s role. Rather, the appellate 

court must defer to such findings, and only disturb a lower court’s ruling for an 

abuse of discretion. Because there is direct testimony that Appellant used or 

threatened to use force against a peace officer to resist his arrest, the trial court did 

not act unreasonably or arbitrarily in finding that allegation to be true. Thus, the 

evidence is legally sufficient to support the trial court’s conclusion and Appellant’s 

point of error should be overruled. 
6

CONCLUSION

Appellant’s sole point of error should be overruled because the evidence was 

sufficient to support a rational finding that Appellant used force against known 

peace officers to prevent his arrest. There was direct testimony that Appellant not 

only threatened physical violence, but actually inflicted such violence in an effort 

to prevent his arrest. As such, the evidence is legally sufficient to support the trial 

court’s findings, and Appellant’s point of error should be overruled.

PRAYER

WHEREFORE, PREMISES CONSIDERED, there being no reversible error 

in the trial of this case, the State respectfully moves this Court to overrule 

Appellant’s point of error and affirm his conviction. The State further prays for 

any and all such additional relief as the Court may deem just and appropriate.

Dated: January 6, 2015

Respectfully submitted,

/s/ John B. Setterberg

John B. Setterberg

State Bar No. 24043915

Assistant Criminal District Attorney

Fannin County, Texas

101 East Sam Rayburn Dr., Suite 301

Bonham, Texas 75418

903-583-7448

903-583-7682 (fax)
7

CERTIFICATE OF COMPLIANCE

The undersigned hereby certifies that the foregoing document contains 1,278 

words, exclusive of the portions described by TEX. R. APP. P. 9.4 (i)(1), as 

computed by the computer program used to prepare the document.

/s/ John B. Setterberg

John B. Setterberg

Assistant Criminal District Attorney

Fannin County, Texas

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the 

foregoing was served electronically to the individual listed below on this the 6th

day of January, 2015.

/s/ John B. Setterberg

John B. Setterberg

Assistant Criminal District Attorney

Fannin County, Texas

Micah Belden

711 North Travis

Sherman, Texas 75090

ATTORNEY FOR APPELLANT