O RAL A RGUMENT R EQUESTED ONLY I F R EQUESTED BY A PPELLANT

No. 06-14-00150-CR

IN THE SIXTH COURT OF APPEALS TEXARKANA, TEXAS

________________ 

## T IM 

## P ETTY , Appellant

v. 

## T HE 

## S TATE OF 

## T EXAS , Appellee

________________
On A ppeal in Cause No. CR-12-24244 From the 336 TH Judicial D istrict Court of F annin County, Texas

__________________________________________________________________ 

# S TATE 

# ’ S 

# B RIEF

__________________________________________________________________

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

CLERKi 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;

ATTORNE Y FOR THE STATE OF TEXAS.

(2) Micah Belden
, 711 North Travis
, Sherman, Texas 750 9 0 ; TRIAL AND

APPELLATE ATTORNEY FOR APPELL ANT

. (3 ) Timothy Earl Petty, TDCJ #019 45 203
, Hu tchins Unit, 1500 East Langdon

Rd., Dallas
, Texas 7 5241 ; APPELLANT

.ii TABLE OF CONTEN TS

IDENTITY OF PARTIES AND COUNSEL

................................ ............................ i

TABLE OF CONTENTS

................................ ................................ .......................... ii

INDEX OF A UTHORITIES

................................ ................................ .................... iii

STATEMENT OF FACTS

................................ ................................ ........................ 1

SUMMARY OF THE ARGUMENT

................................ ................................ ........ 2

A RGUMENT

................................ ................................ ................................ ............. 3
The evidence was sufficient to show that Appellant forcefully resisted officers as they tried to arrest him.

................................ ................................ ......... 3

CONCL USION

................................ ................................ ................................ .......... 6

PRAYER

................................ ................................ ................................ .................... 6

CERTIFICATE OF COMPLIANCE

................................ ................................ ......... 7

CERTIFICATE OF S ERVICE

................................ ................................ .................. 7iii 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. Cr im. 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

T EX

. C ODE C RIM

. P RO

. Art. 42.12 § 5(b)

................................ ................................ ... 3

T EX

. P ENAL C ODE § 38.03(a)

................................ ................................ ..................... 4No. 06

- 14

- 00 150

- CR

IN THE SIXTH COURT OF APPEALS TEXARKANA, TEXAS

________________ 

## T IM 

## P ETTY , Appellant

v . 

## T HE 

## S TATE OF 

## T EXAS , Appellee

________________ TO THE HONORABLE JUSTICES OF THE SIX TH 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 p robation; the underlying offense was aggravated assault with a deadly

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

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

STATEMENT OF FACTS

On June 5, 20 13 , 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 supervis ion (Cl. R. at 47 ). When officers from the Bonham2 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, th at there was a struggle that last ed
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 reare d 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 Ap pellant fought the officers
even after he was placed in handcuffs, a nd that he was able to break free by
leveling his shoulder into one of the officer s and striking him in the chest or

midsection with his elbow (Ct. R. vol. 2, at 50

- 52 ). Based on this test imony, 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).

S UMMARY 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 arresti ng officers, as well as testimony that he physically struck or3 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 diff ering eyewitness accounts that have already been
considered and resolved by the trial court. T hose 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 th e allegation,

t he evidence is legally sufficient to support Appellant’s conviction
, and his point

should be overruled.

ARGUMENT

The evid ence 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 guilt 1 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. T EX

. C ODE C RIM

. P RO

. 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 req uired
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

d isturbed 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 pea ce officer. T EX

. P ENAL

C ODE § 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 a t 763

- 64.5 In this case, both officers testified that A ppellant 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 P inion 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 a rrest.
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 t his is not an appellate court’s role. Rather, the appellat e
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 inf licted 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 reversibl e 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.

D a ted: 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 T EX

. R. A PP

. P. 9.4 (i)(1), as

comp uted 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 t o the individual listed below on this the 6th day of January, 2015

.

/s/ John B. Setterberg John B. Setterberg Assistant Criminal District Attorney Fannin Cou nty, Texas

Micah Belden 711 North Travis Sherman, Texas 75090 ATTORNEY FOR APPELLANT