NUMBER 13-12-00184-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

TRAVIS TODD, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the County Court of Law No. 1

of Nueces County, Texas.

 

MEMORANDUM OPINION

Before Justices Rodriguez, Benavides, and Perkes 

Memorandum Opinion by Justice Perkes

Appellant Travis Todd appeals his conviction for misdemeanor resisting arrest. 

See TEX. PENAL CODE ANN. § 38.03 (West 2011). The jury found appellant guilty of 

resisting arrest, and the trial court sentenced him to eight-days’ confinement in the county 

jail and fined him $2,000.00. By one issue, appellant contends that the evidence was 

insufficient to prove that he used force against the arresting officer. We affirm. 
2

I. FACTUAL AND PROCEDURAL BACKGROUND

Officers Nathaniel Perez and John Esparza were dispatched to appellant’s house 

in response to a reported disturbance involving an intoxicated person. After talking to 

appellant’s daughter, Officer Perez believed that he had probable cause to arrest 

appellant for assaulting his daughter. Officer Perez approached appellant, who was 

outside smoking a cigarette, and told him to put out the cigarette. Appellant refused, 

saying, “No, I am not going—I am going to stand here and smoke.” Officer Perez again 

ordered him to extinguish the cigarette, but appellant responded, “Well, what if I don’t?”

According to Officer Perez, he then pulled out his taser, turned it on, and pointed it 

at appellant and said, “You are under arrest. Put your cigarette out. Turn around. 

Place your hands behind your back.” Officer Perez testified that appellant yelled, 

“Arrested for what?” Officer Perez told him that he was under arrest for “assault family 

violence.” Appellant still refused to comply, and Officer Perez removed the cartridge 

from the taser to produce a “warning arc.”1 Officer Perez testified that because appellant 

failed to comply after he displayed the “warning arc”:

Deputy Esparza grabbed a hold of one of his arms and tried to place it 

behind his back. They began to struggle, so I went to help Deputy 

Esparza. I grabbed one arm. He had the other. I was trying to place his 

arm—his hand and his arm behind his back. He was pulling away from us,

pushing away from us using his—his physical strength. We are trying to 

pull this way, he is pulling this way away from us, you know.

Officer Perez stated that before he began helping Officer Esparza, Officer Esparza

and appellant struggled and “[t]hey end[ed] up against the guardrail . . . Officer Esparza is 

 

1

 During trial, Officer Perez described a “warning arc” as follows: “[Y]ou remove your cartridge, 

and your cartridge is what holds the two probes that when you typically see someone get tased, one shoots 

out, and the other one shoots low. What I did is I removed the cartridge.” Officer Perez used his taser to 

demonstrate a “warning arc” to the jury. 
3

on this side trying to pull his arms behind his back.” Officer Perez came over to help 

Officer Esparza arrest appellant, and appellant continued to resist: “He is—what he is 

doing is he is pulling his body and pulling his hands using—like a—like you are doing 

a—in the gym or you are doing a cable crossover, you know. He is using his strength to 

pull away. We are pushing this way.” To clarify Officer Perez’s “cable cross-over” 

description, the prosecutor demonstrated a movement and asked Officer Perez if it 

accurately reflected the appellant’s movement. Officer Perez affirmed that it did.

Officer Esparza testified that when he reached for appellant’s arm, appellant 

“started moving his arm in a forward motion trying to break the grasp that I had on his wrist 

and moving his arm back and forth, trying to lift it up.” When Officer Perez grabbed 

appellant’s other arm, appellant “was still moving his arms forward, was still lifting his 

arms up, moving his body, trying to prevent us from grabbing both arms and putting them 

behind his back.” Officer Esparza stated that Officer Perez’s description of appellant’s 

movement as a cable crossover was accurate. 

Officers Perez and Esparza eventually handcuffed appellant, and began to escort 

him to their patrol car. But, according to Officer Perez’s testimony, appellant “leaned 

himself back into” and pushed against them. Officer Esparza testified that appellant 

“kept leaning back with his back and putting his feet down and stomping his feet to try to 

get us so we couldn’t escort him . . . to prevent him [sic] from taking him to the [patrol] 

unit.” Officer Esparza demonstrated appellant’s conduct before the jury. 
4

The Officers succeeded in putting appellant in the patrol car by using the

“come-along technique.”2 At trial, Officer Perez acknowledged that appellant did not 

strike or kick him, and Officer Esparza acknowledged that appellant did not even attempt 

to strike or kick them. At some point during the arrest or escort, appellant cut his hand, 

and blood was smeared on the back of his shirt. Officers Perez and Esparza speculated 

that the cut was caused by the handcuffs when appellant forcefully resisted them. 

Appellant’s testimony, as well as his daughter’s, characterized appellant as 

compliant with the officers, who, without provocation, allegedly used excessive force in 

arresting him. Appellant explained that “I may have pulled back a little bit” and “I could 

have been pulling somewhat,” but only to the extent necessary to inform the officers of a 

medical condition in his hips that caused him severe pain.3 He denied having the ability, 

due to the medical condition, to stomp or resist them. 

II. STANDARD OF REVIEW AND APPLICABLE LAW

“The standard for determining whether the evidence is legally sufficient to support 

a conviction is ‘whether, after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt.’” Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim.

 

2

 Officer Perez described the “come-along technique” as follows: 

[S]ince his body weight is being pushed back against us and his hands are behind him, 

what we do is we use one of our arms, what they call underhook it, you know, put it 

between—put it in this hole here. And what that does is it brings his hands up, pushes his 

head down, and now his body weight is over his feet. So when we are walking, we are 

kind of holding him, supporting his weight, but walking for him, so all he is doing is letting 

his feet follow.

3

 Appellant testified that he was trying to ask them to put him in the patrol car before handcuffing 

him “because it was too hard for me to get my legs in the car, I could not get in the car without the use of my 

hands. And I think this is where they felt I was resisting arrest . . . .” 
5

App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 

560 (1979)) (emphasis in original); see Brooks v. State, 323 S.W.3d 893, 898–99 (Tex.

Crim. App. 2010) (plurality op.). The fact-finder is the exclusive judge of the credibility of 

witnesses and of the weight to be given to their testimony. Anderson v. State, 322 

S.W.3d 401, 405 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (citing Lancon v. 

State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008)). Reconciliation of conflicts in the 

evidence is within the fact-finder’s exclusive province. Id. (citing Wyatt v. State, 23 

S.W.3d 18, 30 (Tex. Crim. App. 2000)). We must resolve any inconsistencies in the 

testimony in favor of the verdict. Id. (citing Curry v. State, 30 S.W.3d 394, 406 (Tex.

Crim. App. 2000)).

We measure the sufficiency of the evidence by the elements of the offense as 

defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 

(Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 

1997)). Such a charge is one that accurately sets out the law, is authorized by the 

indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily 

restrict the State’s theories of liability, and adequately describes the particular offense for 

which the defendant was tried. Id. The elements for resisting arrest are: (1) a person; 

(2) intentionally; (3) prevents or obstructs a person he knows is a peace officer or a 

person acting in a peace officer’s presence and at his direction from effecting an arrest of 

actor or another; (4) by using force against the peace officer or another. TEX. PENAL

CODE ANN. § 38.03(a).
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III. DISCUSSION

In appellant’s sole issue on appeal, appellant challenges the sufficiency of the 

evidence to prove that he used force against the arresting officers. Appellant relies on 

Leos v. State, a case in which this Court held that the appellant’s conduct of holding his 

hands to his stomach to prevent the officers from handcuffing him and crawling away on 

his shoulders and knees was not force against a peace officer. Leos v. State, 880 

S.W.2d 180, 181 (Tex. App.—Corpus Christi 1994, no writ) (emphasis added). Although 

appellant relies on Leos, its facts are narrow and distinguishable. In Leos, the defendant 

attempted to merely crawl away from the arresting officers and used no force against the 

officers to resist arrest. In that regard, courts have held that the mere refusal to being 

arrested does not constitute resisting arrest by force. Sheehan v. State, 201 S.W.3d 

820, 823 (Tex. App.—Waco 2006, no pet.). Noncooperation, however, when combined 

with force or violence, is resistance. See id. (citing Bryant v. State, 923 S.W.2d 199, 206 

(Tex. App.—Waco 1996, writ ref’d)). 

In Furch v. State, we again addressed an evidentiary sufficiency issue regarding a 

misdemeanor resisting-arrest conviction. Furch v. State, No. 13-01-00815-CR, 2002 

Tex. App. LEXIS 8804, at *4–6 (Tex. App.—Corpus Christi 2002, no pet.) (not designated 

for publication). In that case, a deputy answered a domestic disturbance call after the 

wife notified law enforcement about an altercation with her husband, Furch. Id. at *1. 

They had been drinking alcohol, and they both had scratches on their necks and faces. 

The deputy arrested the wife without incident. Id. However, when the deputy 

approached Furch and advised him that he was under arrest, Furch started walking away 
7

from the deputy saying that he was not going to jail. Id. at *5. At that point, the deputy 

reached for him and grabbed a hold of his arm. Id. at *1–2. Furch twisted, turned, 

pushed away from the deputy, and took off running towards his house. Id. at *5. The 

deputy caught up with him and handcuffed him. Id. at *2. We held that this evidence 

was sufficient to uphold the jury’s verdict that Furch used force to resist arrest. Id. at *6. 

Here, the evidence shows that appellant effectuated his preference against arrest 

by exercising physical force directly against the officers to the extent it required both 

officers’ efforts to counter his “cable crossover” pull so that they could put the handcuffs 

on him. Appellant’s resistance was so forceful that he cut himself on the handcuffs and 

bled all over the back of his shirt. Further, while the officers were escorting appellant to 

the patrol car, his resistance against them was so pronounced that they had to use a 

special technique, the “carry-along,” in order to direct him to the car. Appellant’s conduct 

is more like the defendant’s conduct in Washington v. State than the defendant’s in Leos. 

See 525 S.W.2d 189, 190–91 (Tex. Crim. App. 1975) (holding that the defendant’s use of 

physical strength to drag two officers eight to ten feet was sufficient evidence of force 

used to resist arrest). 

We further note that the trial testimony indicates that several demonstrations and 

gestures were used to clarify testimony that was given during the trial.

4

 As this Court 

 

4

 For example, Officer Perez testified, “We are trying to pull this way, he is pulling this way away 

from us, you know.” Later in his testimony, Officer Perez also said, “He is using his strength to pull away. 

We are pushing this way.” After Officer Perez testified that appellant’s movement resembled a “cable 

crossover,” the State asked, “So I’m—if I demonstrate, tell me, like this?” Officer Perez indicated that the 

demonstrated movement was correct. 

Officer Esparza demonstrated the “come-along technique” for the jury. In addition, the following 

exchange occurred while during Officer Esparza’s testimony:
8

explained in Gaona v. State, demonstrations or gesticulations that take place at trial, but 

that are not reduced to articulated descriptions in the record, may influence the jury. We 

must presume that the undescribed acts support the jury’s findings. Gaona v. State, 733 

S.W.2d 611, 613 n.1 (Tex. App.—Corpus Christi 1987, no writ); see also Morales v. State, 

293 S.W.3d 901, 909 (Tex. App.—Texarkana 2009, pet. ref’d) (“We, too, are constrained 

to defer to the jury’s findings, based on its observation of the gestures and 

demonstrations at trial . . . which were not transcribed and which we cannot see.”); 

Rogers v. State, 756 S.W.2d 332, 336–37 (Tex. App.—Houston [14th Dist.] 1988, pet. 

ref’d) (holding standard of review—reviewing record in light most favorable to jury 

verdict—requires assumption that the trial demonstrations supported the jury verdict). 

We hold that the foregoing testimony, particularly when coupled with the 

demonstrations at trial, shows that a rational trier of fact could have found beyond a 

 

State: [T]ell me if I am doing it right that it was like a cable crossover at the gym, 

right? 

Esparza: Yes, sir. 

State: So are you trying to—when you are trying to handcuff someone, you are 

trying to put their hands behind their back—

Esparza: Yes, sir.

State: —Like we demonstrated, right? And this—like this—

Esparza: Well, actually—

State: Like that?

Esparza: Like that, yes, sir.

Throughout trial, the witnesses and attorneys also made several references to distance as they 

related to persons in the courtroom. The State responded to appellant’s motion for directed verdict, which 

was premised on the distinction between passive and active noncooperation during arrest in Sheehan, by 

reminding the trial judge that “[T]hey were trying to get him to comply, [and he] put his hands behind his 

back and he is actively pushing forward like this.” See Sheehan v. State, 201 S.W.3d 820, 823 (Tex. 

App.—Waco 2006, no pet.). 
9

reasonable doubt that the evidence was sufficient to support the verdict that appellant 

used force in resisting arrest. We overrule appellant’s sole issue on appeal. 

IV. CONCLUSION

We affirm the trial court’s judgment. 

GREGORY T. PERKES

Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the 

25th day of October, 2012.