### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-14-00484- CR

Michelle Elaine Gam bles, App ellant

v. The State of Texas, App ellee

F ROM TH E CO UNTY COURT AT LAW NO . 2 O F B ELL COUNTY NO. 2C13- 0748 5, H ONO RAB LE JO HN MI CHAEL M ISCH TIAN, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A ju r y f o u n d a p p e ll a n t M ic h e ll e E la in e G a

mb le s g u il ty o f r e s is ti n g a

r r e s t a n d assessed punishment a t six da

y s in the county jail. See Tex. Pena l Code § 38.03. I n her sole point of err or, Gambles contends that the evidenc e is leg ally insufficient to support her conviction. We will aff irm the trial cour

t’s judgme nt of conviction.

DISCUSSIO N A person commits the offe nse of resisting arr est “if he inte n t i o nally preve nts or obstructs a person he knows is a peace office r or a person a cting in a pea ce of fice r’s presenc e and
at his direc tion from eff

ecting an arr est , s ear ch, or transporta tion of the actor or another by using forc e ag ainst the peac e office r or another .” Id. § 38. 0 3 (a ). Ga m b l es arg ues that the evidenc e isleg ally i nsufficie nt to support her conviction beca use “the State failed to establish that [Gambles] intentionally

used for ce a g ainst a pea ce of fice r or a nother a s require d by

law.” 1
At trial, the State prese nted evidenc e of the following fac ts. Michae l Young and his 2 employ ee, who wer e plumbers, wer e responding to a servic e call when Gambles approa ched them and acc used them of driving too fast throug h the neig hborhood. Gambles was ag itated and hostile,

a n d Y o u n g c a ll e d 9 1 1

. T w o p o li c e o f f ic e r s a r r iv e d a n d tr ie d to c a lm G a

mb le s d o w n . Wh e n G a

mb le s ref used to coope rate , the offic ers be g an to place Gambles unde r ar rest. Gambles was “wa iv i n g h er arms and being loud,” and was “re ally ag g ressive” and “ra ther hostile.” An office r was able to g et one of Gambles’s hands into handcuf fs and then g rabbe d Gambles’s other wrist. Gambles jerke d her second hand fre e by spinning out of the office r’s g rasp. Gambles was “wa s still try ing to figh t , ” and Gambles and the office r dropped to the g round. Gambles place d her hands underne ath her body and ref used to allow the office r to secur e her hands. Both officer s strug g led wit h Gambles on the ground for a few m inutes, and Gambles was kicking
at one of the office rs and scre aming

. Eventually , one of the office rs used a taser on Gambles. The office rs were then able to place Gambles in handcuffs a nd escor t her to t he poli ce vehicle. At the

When revie wing the sufficie ncy of the evidenc e supporting a conviction, we view the 1 e v id e n c e in th e li g h t mo s t f a v o r a b le to th e v e r d ic t a

n d d e te r mi n e w h e th e r a

ny r a ti o n a l tr ie r o f f

a c t c o u ld h a v e f o u n d e a c h e s s e n ti a l e le me n t o f th e o f f e n s e b e y o n d a r e a s o n a

b le d o u b t. S e e J a c k s o n v
. V ir g in ia , 443 U.S. 307, 319 (1979); Brooks v. State , 323 S.W .3d 893, 895 (Tex. Crim. App. 2010) (plurality op.); Schneide r v. State , 440 S.W .3d 839, 841 (Tex. App.—Austin 2013, pet. ref ’d) ( mem. op.). Although much of this evidenc e was disputed, “[ w] hen the rec ord supports conflicting 2 infere nces, we presume that t h e fa ct fi n der resolved the conflicts in favor of the prosec ution and th e r e f o r e d e f e r to th a t d e te r mi n a ti o n . ” Cl a y to n v
. S ta te , 2 3 5 S. W. 3 d 7 7 2 , 7 7 8 ( T e x. Cr im

. A p p . 2 0 0 7 ) ; see Tex

. Code Crim. Proc. art. 38.04 (“The jury , in all case s, is the exclusive judge of the fac ts proved, a nd of the we ight to be g iven to the testimony . . . .”). 2vehicle, Gambles continued to kick as the office rs sear ched her, and she continued to scre am while

inside the vehicle

.

Viewing this evidenc e in the light most fa vorable to the verdic t, w e conclude that a

rea sonable trier of fac t c ould ha ve found bey ond a rea sonable doubt that Gambles committed eac h essential element of re sisting ar rest. The only element of the offense that Gambles contests is the

use of forc e. Howeve r, Gambles used forc e beca use, at a minimum , she spun and jerke d her arm fre e of the offic er ’s gra sp. See Finley v. State , No. PD-1473-14, 2016 WL 747605, at *2 (Tex. Crim. App. Fe b. 24, 2016) (conc luding sufficie nt evidenc e supported conviction for resisting arr est beca use office r “testified that, while he pulled [defendant’ s] rig ht arm back, [defendant] kept pulling his arm forwa

rd towards his body

—the opposite direc tion from the office rs’ eff orts” and beca

use “[defenda nt] actively p u l l ed awa

y and attempted to pull his arms in front of himself”); Finley v. S t a t e , 449 S.W .3d 145, 149 (Tex. App.—Austin 2014), aff’d , 2016 WL 747605 (“[T]here i s evidenc e from which a rational trier of fac t could hav e rea sonably inferr ed that [defendant] had direc ted forc e ‘a t or in opposition t o’ the off icer s . . . by forc efully pulling awa y from them.”) ; see also Dobbs v. State , 434 S.W .3d 166, 171 (Tex. Crim. App. 2014) (def ining “using forc e ag ainst the
peac e office r or another ” as “violence or phy sical ag g ression, or an immediate threa t there of, in the direc tion of and/or into contac t with, or in oppositi on or hostility to, a pea ce of

fice r or a nother” ). 3
Acc ording ly , we ove rrule G ambles’s sole point of e rror .

Gambles arg ues that evidenc e that she mere ly pulled her arm fre e of the office r’s g rasp is 3 insufficient to establish that she used forc e, citing Sheehan v. State , 201 S.W .3d 820, 822–23 (Tex. App.—Waco 2 0 0 6 , n o p et.). Howeve r, t he court of criminal appea ls’s opinion in Finley v. State , cited above , belies that ar g ument. 3CONCLUSION Having overr

uled Gambles’ s point of error , we a ffirm the judg ment of convic tion.

__________________________________________ Scott K. Field, Just ice
Be fore Chief J ustice Rose, Jus tices Pemberton a nd Field Affir med Filed: Apr il 13, 2016 Do Not Publish

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