1 Pflugerville I.S.D. Opportunity Cent er provides instruction for middle school and high

school students with special educational and behavioral needs in a setting separate from the regular

classroom. 

### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-02-00672-CV

In the Matter of M. H.

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT

NO. J-22,097, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING

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

Appellant M.H. was adjudicated delinquent for the offen se of resisting arrest. S ee

Tex. Fam. Code Ann. § 51.03(a)(1) (West 2002); Tex. Pen. Code Ann. § 38.03(a) (West 2003). In

this appeal, appellant argues that the evidence is legally and factually insufficient to support the

adjudication. We will affirm.

BACKGROUND

On May 9, 2002, Officer M. Delarosa of the Pflugerville Police Department was

dispatched to Albertson ’s grocery store to find appellant, who had left Pflugerville I.S.D.’s

Opportunity Center without permission. 1 Delarosa saw appellant talking on a pay telephone inside2

the store and approached her. When appellant told Delarosa that she would walk back to school by

herself, Delarosa advised appellant that she was being detained for truancy. Appellant willingly left

the building with Delarosa. However, when Delarosa opened his car door to return appellant to the

school, she refused to get in the car. Instead, appellant started to walk away. Delarosa grabbed

appellant’s upper left arm and tried to maneuver her into the car. Appellant resisted and tried to pull

away. Although Delarosa instructed appellant to stop resisting, appellant pulled away again.

Delarosa secured both of appellant’s arms with his left arm, placing appellant against his patrol car.

Pushing with her torso, appellant struggled with Delarosa, causing both to fall to the ground.

Delarosa sustained minor injuries. After the fall, Delarosa placed handcuffs on appellant.

After a bench trial, the trial court fou nd that appellant resisted arrest by pushing

Delarosa with her torso, thereby engaging in delinquent conduct. See Tex. Pen. Code Ann.

§ 38.03( a); Tex. Fam. Code Ann. § 51.03(a)(1). In this appeal, appellant disputes the legal and

factual sufficiency

of the evidence. According to appellant, the evidence is at best sufficient to

support a conviction for resisting transportation. See Tex. Pen. Code Ann. § 38.03(a).

DISCUSSION

A person commits the offense of resisting arrest if she intentionally prevents or

o bstructs a person she knows is a peace officer from effecting an arrest by using force aga inst the

peace officer or another. I d. Appellant challenges the legal and factual sufficiency of the evidence

on two points: that the evid ence shows that appellant did not use force against Delarosa and that,

because appellant was already under arrest when she allegedly resisted, she cannot be found to have

resisted arrest.3 In conducting a legal sufficiency review, we ask whether, after viewing all the

evidence in the light most favorable to the adjudication, any rational trier of fact could have found

the essential elements of the offense beyond a reasonable doubt. See Johnson v. State , 23 S.W.3d

1, 7 (Tex. Crim. App. 2000); Griffin v. State , 614 S.W.2d 155, 158-59 (Tex. Crim. App. 1981); In

re L.M.

, 993 S.W.2d 276, 284 (Tex. App.—Austin 1999, pet. denied); Skillern v. State

, 890 S.W.2d

849, 879 (Tex. App.—Austin 1994, pet. ref’d); see also Tex. Fam. Code Ann. § 54.03(f) (West

2002). We review adjudications of delinquent conduct in juvenile proceedings under the same

standard of review we employ to review the sufficiency of the evidence supporting a trial court’s

verdict in a criminal case. S ee In re L.M.

, 993 S.W.2d at 284; see also In re B.M.

, 1 S.W.3d 204,

206 (Tex. App.—Tyler 1999, no pet.). The State must prove each element of the offense in order

to sustain an adjudication of delinquency. N arvaiz v. State

, 840 S.W.2d 415, 423 (Tex. Crim. App.

1992). We do not realign, disregard, or weigh the evidence. Rodriguez v. State

, 939 S.W.2d 211,

218 (Tex. App.—Austin 1997, no pet.). The trier of fact has the responsibility of weighing all the

evidence, resolving evidentiary conflicts, and drawing reasonable conclusions from the evidence.

Garcia v. State

, 57 S.W.3d 436, 441 (Tex. Crim. App. 2001). A trial court’s findings of fact entered

after a bench trial have the same force and dignity as a jury’s verdict. I n re B.M.

, 1 S.W.3d at 206.

I n reviewing the factual sufficiency of the evidence, we determine wheth er the

evidence, viewed in a neutral light favoring neither party, is so weak as to be clearly wrong or

manifestly unjust, or if the finding of a vital fact is so contrary to the weight and preponderance of

the evidence as to be clearly wrong. J ohnson

, 23 S.W.3d at 11. If the defendant challenges the4

factual sufficiency of a guilt finding on appeal, the reviewing court must determine whether: (1) the

evidence is so weak as to be clearly wrong or manifestly unjust and (2) the finding of a vital fact is

so contrary to the weight and preponderance of the evidence as to be clearly wrong. Z uliani v. State

,

97 S.W.3d 589, 593-94 (Tex. Crim. App. 2003); see also Good man v. State , 66 S.W.3d 283, 285

(Tex. Crim. App. 2001). As with legal sufficiency review, the trier of fact has the responsibility of

weighing all the evidence, resolving evidentiary conflicts, and drawing reasonable conclusions from

the evidence. G arcia

, 57 S.W.3d at 441. A decision is not manifestly unjust simply because the trier

of fact resolved conflicting views of the evidence in the State’s favor. R oise v. State

, 7 S.W.3d 225,

233 (Tex. App.—Austin 1999, pet. ref’d).

Appellant contends that the evidence is legally and factually insufficient to support

the finding that she resisted arrest on two elements: (1) her arrest was complete before the time she

allegedly resisted and (2) she did not use force against Delarosa. The offense of resisting arrest

requires that a per son resist during the course of his arrest. S ee Tex. Pen. Code Ann. § 38.03(a).

Relying on Medford v. State

, 13 S.W.3d 769, 773 (Tex. Crim. App. 2000), appellant argues that her

arrest was complete once she willingly left the building with Delarosa and that her later actions were

in resistance of transportation, not arrest. S ee Young v. State

, 622 S.W.2d 99, 100 (Tex. Crim. App.

1981) (once arrest complete, suspect’s later violent actions cannot be resistance of arrest). The court

in Medford establishes limits on the definition of the term “arrest.” Because Delarosa told appellant

that she was being detained for truancy and, after that statement, appellant submitted to Delarosa’s

authority by willingly leavi n g the building with him, appellant argues that the finder of fact could5

not have found that the arrest was incomplet e. Appellant argues that she resisted a fter the arrest,

when Delarosa attempted to transport her back to school.

The State replies that Delarosa’s statement and the fact that appellant left the building

with him do n ot necessarily lead to the conclusion that appellant’s arrest was complete. S ee

Medford

, 13 S.W.3d at 773 (citing Smit h v. State , 219 S.W.2d 454, 456 (Tex. Crim. App. 1949)).

According to the State, arrest requires custody or detention and submission to such arrest. I d. at 773.

The State argues that the trial court is to make a case-by-case determination on the scope of arrest.

Id

. Because there was sufficient evidence for the trial court to determine that the arrest was not

complete at the time appellant struggled w ith Delarosa, the State concludes that there existed

sufficient evidence on that point.

We agree with the State. In M edford

, the Texas Court of Criminal Appeals defined

the term “arrest” in the context of the escape statute of the Texas Penal Code. The court of criminal

appeals stated:

For purposes of the escape statute, an ‘arrest’ is complete when a person’s liberty of

movement is successfully r estricted or restrained, whether this is achieved by an

officer’s physical force or the suspect’s subm ission to the officer’s authority.

Furt hermore, an arrest is complete only if ‘a reasonable person in the suspect’s

position would have understood the situation to constitute a restraint on freedom of

movement of the degree which the law associates with formal arrest.’

Id

. (citing U

nited States v. Corral-Franco

, 848 F.2d 536, 540 ( 5th Cir. 1988)). While M edford

limits the fact-finder’s discretion to determine whether an arrest has occurred, it does not establish

a bright line rule. Arrest is to be determined by examining the totality of the circumstances in a case-6

by-case analysis. I

d

. An officer’s statement to an accused that she is under arrest is not conclusive.

Id

. Delarosa testified that he was attempting to finalize the arrest; this is sufficient to indicate that

the arrest was not complete. While appellant may have willingly left the store with Delarosa,

appellant’s repeated statements to Delarosa that she would walk to school by herself suggest that she

did not consider the situation to be a formal arrest. Appellant’s effort to walk away once outside the

store is sufficient to indicate that appellant had not submitted to Delarosa’s authority and that her

liberty may not, in fact, have been restrained. C f. Young

, 622 S.W.2d at 100 (defendant did not resist

arrest where defendant’s “later violent actions” occurred after defendant had been handcuffed and

transported to a security office). Appellant pulled away from Delarosa at least twice, even after

Delarosa had instructed appellant to “st op resisting.” This evidence is sufficient to support the

conclusion that appellant’s arrest was not complete when she resisted.

Appellant also challenges the sufficiency of the evidence supporting the finding that

appellant used force against Delarosa. S ee Tex. Pen. Code Ann. § 38.03(a). Appellant attempts to

cast doubt upon Delarosa’s testimony by arguing that his police report and his testimony are in

conflict. In his police report, Delarosa indicated that appellant used her upper torso to push away

from the car. At trial, Delarosa testified that appellant used her upper torso to push up against him.

Appellant argues that this inconsistency renders the evidence insufficient to support the conclusion

that she used force against Delarosa.

The State replies that any contradictions in Delarosa’s testimony reflect an omission

in the report, which at most raises a credibility issue. A decision is not manifestly unjust because7

the trier of fact resolved conflicting views of the evidence in the State’s favor. Roise , 7 S.W.3d at

233. The State argues that Delarosa’s testimony at trial is sufficient to support the conclusion that

appellant used force against Delarosa.

We agree with the State. Evidence regarding appellant’s use of force must be

evaluated by the fact-finder. The fact-finder has the responsibility of weighing all the evidence,

resolving evidentiary conflicts, and drawing reasonable conclusions from the evidence. G arcia

, 57

S.W.3d at 441. This responsibility includes determining the credibility of witnesses. In this case,

appellant contends that she used force to push away from the car, not to push up against Delarosa.

Delarosa’s testimony alone is legally sufficient to support the conclusion that appellant used force

against Delarosa. In light of this evidence, it is clear that a rational trier of fact could have found that

appellant used force against Delarosa.

Likewise, the evidence supporting conviction is not so weak as to render the adverse

finding clearly wrong or manifestly unjust. Appellant never took the stand, and Delarosa testified

as to all the elements of the offense. Delarosa’s unimpeached testimony is not so weak as to lead

to a clearly wrong or manifestly unjust result. Likewise, appellant does not draw our attention to any

evidence that would suggest there is proof contrary to the weight and preponderance of the evidence.

At most, appellant’s contrary assertions about the completion of arrest and the use of force raise a

credibility issue, which is to be determined by the trier of fact. We hold that the evidence is factually

sufficient to support the adjudication.8 CONCLUSION

Because the evidence is legally and factually sufficient to support the finding that

appellant resisted arrest, we affirm the trial court’s adjudication.

__________________________________________

Mack Kidd, Justice

Before Justices Kidd, B. A. Smith and Patterson

Affirmed

Filed: June 12, 2003