NO. 07-04-0329-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL B JANUARY 5, 2005

______________________________ FRANKLI N SCOTT GODDARD, Appellant

v. THE STA

TE OF TEX

AS, Appellee

_________________________________ FROM THE 69 TH DISTRICT COURT OF MOORE COUNTY; NO. 3409; HON. RON ENNS, PRESIDING

_______________________________ Memorandum Opinion

_______________________________ Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ. Appella nt, Franklin Scott Goddard, appeals his conviction for a ggravated assault upon a public s erv ant. Hissole is sue invo lves whe ther the t rial cou rt erred i n refusin g to instruct the jury on self-defense. He contends that he was entitled to such an instruction because evidence appeared of record indicating that appe llant defended himself because the arresting offic er us ed excessive force in attempting to arrest him. We overrule the issue an d affirm th e judgmen t.2 Background Appellant

admitted to depositing a couch belonging to his ex-wi fe in the street along
a curb in front

of a house in which she purportedly l ived. He did this because she did not
come home the night be fore and d espite the fact that they were no longer married. Two officerslater encountered him at his mother’s home and directed him to remove the item from the street. After a verbal exchange between appellant and the officers, he ag reed to comply with their request. Upon returning to the site, henoticed that hisex-wifeand othe rs had already removed the couch from the street and placed it in the bed of a pick-up truck. Informing her that the officer s had di rected him to remove the couch from the street, he proceeded to extract it from the pick-up. His ex-wife objected, and profane l anguage was uttered. At that p oint, according to appella nt, an officer “[f]or no reason . . . grabbed [his] arm.” Purportedly, nothing was said by the officer before he di d this. Appellant

also testified that after hi s a rm was grabbed, he “spun” away from the officer’s grasp an d info rmed the officer th at he had directed appella nt to “get the couc h.” The officer

replied by directing appellant to “get down on the g round, yo u’re und er arrest.” Appellant

admitted that he refused to comply with that directive and co ntinued to refu se because he “had jo bs to do.” The officer

had previous knowledge of prior family disputes betwe en appellant and his ex-wife. And, at the time he approached ap pellant , he had decide d to arrest him for disorderlyconduct. Yet, appellant refused his directives to lay on the ground or place his hands behind his back . Conseq uently, the officer’s efforts to effectuate the arrest continued and involved the use of force and mace. E ventually, appellant succeeded in fleeing the scen e and pro ceeding to his mother’s house. At the latter, he obtained a firearm3

and pointed it at one of the officers who foll owed him . The off icers ultimately succeeded in arresting him at that locale. Self-Defense One is not at li berty

to use force to resist an arrest, even if the arrest may be considered unlawfu l. T EX
. P EN
. C ODE A NN
. §9.31(b)( 2) (Verno n 2003). Howev er, there existsan exce ption tothis rul e; it perm its the u se of forc e when th e officer uses or a ttempts to use greater force tha n that n ecessary to make the arrest and the accused reasonably believes the forceis immed iately n ecessary to protect himself. Id. §9.31(c). More importantly, the officer’s use or attempted us e of exces sive force must occur “before the [accused ] offers an y resista nce.” Id. §9.31(c)(1 ). Here, appellant argu e s that he was entitled to the instruction on self-defense because the officer u sed greater force th an neces sary when grabbin g appell ant’s arm

. Furthermore, his efforts to resistarose in responseto that act. Appellant did not testify that he feltpain or suffered injury when the officer grabbed his arm. Nor does the record reflect that he did. Similarly absent isevidence describing the amount of pressure exerted by the officer while grippin g appell ant; yet, it is clear that irrespective of whatever it was, the force
was not enou gh to pre vent appe llant fr om extr icating himself by simply spinning around. In short, the evidence of record me rely ill ustrates t hat the o fficer gra bbed app ellant’ s arm without p rior warn ing. One cannot ignore the fact that the statute permitting an individual to protect himself during an arrest authorizes such conduct when the force exerted by the officer i s “greater ” than that nece ssary. In other wo rds, an of ficer is allowed to use so me forc e, just no t excessive force. Fu rthermore, the mere act of gra bbing a suspect’ s arm or arms has been4

held not to co nstitute excessi ve force. Szumny v. State , No. 13-97-902-CR, 1999 LEXIS 7277 at 8 (Tex. App.–Corpus Christi, Septembe r 30, 199 9, pet. ref’d) (not designated for publica tion); Flores v. State , 942 S.W.2d 735, 737-38 (Tex. App.–Houston [14 th Dist.] 1997,
no pet.). Given this and the absence of any evidence illustrating that the p ressure exerted by the officer was sufficient to cause pain or injury, see Flor es v. Stat

e , 942 S.W.2d at

737- 38 (holding that there existed a fact question entitling the defendant to an instruction because the ma nn er in and force wi th which the officer grabbe d Florescaused F lores to suffer pain and a dislocated shoulder), we cannot say that the trial court erred in refusing to instruct the jury o n self-de fense. See Ferre l v. Sta te, 55 S.W.3d 586, 591 (Tex. Cr im. App. 2001) (stating that only when there exists evidence raising the issue of self-defense is the de fendant e ntitled to an ins truction)

. Accordingly, the judgment of the trial court is affirmed.

Brian Quinn Justice

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