Barnett v. State
| Decision Date | 22 April 1981 |
| Docket Number | No. 66941,No. 3,66941,3 |
| Citation | 615 S.W.2d 220 |
| Parties | David Michael BARNETT, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
Don Gladden, Fort Worth, for appellant.
Tim Curry, Dist. Atty. and C. Chris Marshall, Robert McCrarey, Pam Moore and Howard Borg, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for State.
Before TOM G. DAVIS, McCORMICK and TEAGUE, JJ.
Appeal is taken from an order revoking probation.
On March 6, 1978, in a trial before the court, appellant was convicted upon his plea of guilty for delivering of a controlled substance, namely: methamphetamine. Punishment was assessed at five years, probated. On August 5, 1980, appellant's probation was revoked after the court found that he had violated the conditions of his probation by committing the offenses of resisting arrest and assault on May 2, 1980.
In three related contentions, appellant contends the court abused its discretion in revoking his probation. He maintains the evidence is insufficient to prove that he resisted arrest or assaulted the complainant. Appellant further urges that any bodily contact he had with the complainant was the result of self-defense.
Officer R. W. Panke, of the Arlington Police Department, testified that on the night of May 2, 1980, he was in uniform and on patrol in a marked squad car. Panke observed two vehicles racing and was forced to make a u-turn in order the pursue them. After stopping one of the vehicles, Panke saw appellant hanging out the passenger side of a moving car. As the car passed Panke, appellant screamed obscenities at the officer. Following this incident, Panke reentered his squad car and pursued the car occupied by appellant.
After stopping the car in which appellant was a passenger, Panke approached the car and appellant screamed another obscene phrase. At this time, appellant was told that he was under arrest for disorderly conduct and ordered out of the car. Panke related that appellant refused to leave the car and that he had to be physically removed. Once out of the car, appellant struggled with Panke and was eventually subdued and handcuffed. As Panke was placing appellant in the squad car, he was kicked in the face, chest, shoulder and groin area. Panke testified that he suffered pain and bruises as a result of appellant kicking him.
Appellant's wife, Terri Barnett, testified that she was the driver of the car in which her husband was a passenger when he was arrested. She stated that appellant did not resist arrest nor did he kick the officer. Lastly, she related that Panke was acting like a "maniac."
Appellant testified that he had screamed at Panke because the officer's actions in making a u-turn had almost caused his wife to have a collision. Appellant denied resisting arrest or attempting to injure Panke. Lastly, appellant stated that he did not kick the officer.
Betty McKay testified that she saw Panke "being rough" with appellant. She related that she did not observe appellant resisting Panke or kicking him.
In a probation revocation proceeding the trial court is the sole trier of the facts. Battle v. State, Tex.Cr.App., 571 S.W.2d 20. Appellate review of an order revoking probation is limited to the issue of whether the court abused its discretion. Flournoy v. State, Tex.Cr.App., 589 S.W.2d 705. Finally, the standard of proof in such a proceeding is proof by a preponderance of the evidence. Bradley v. State, Tex.Cr.App., 564 S.W.2d 727.
There was conflicting evidence with regard to appellant's actions toward Panke. The court in its role as trier of the facts chose to believe the events as related by Panke. The evidence thus supports the court's finding of resisting arrest and an assault. Appellant's contentions based upon the conflicting evidence presented at the hearing are without merit.
In two related contentions, appellant contends the court abused its discretion in revoking his probation. He maintains that there is insufficient evidence to prove that Panke believed appellant's arrest to be lawful or that he had probable cause for an arrest.
V.T.C.A.Penal Code, Sec. 38.03(a) and (b), provide as follows:
In Gonzalez v. State, Tex.Cr.App., 574 S.W.2d 135, this Court held that in view of Sec. 38.03, supra, it is now a criminal offense to resist an officer even though he may be making an unlawful arrest. See Guevara v. State, Tex.Cr.App., 585 S.W.2d 744. We therefore need not decide the legality of Panke's actions. Even if the arrest was unlawful, appellant's actions nevertheless constituted resisting arrest. Gonzalez v. State, supra. These contentions are without merit.
Appellant further contends the court abused its discretion in revoking his probation. He maintains the court unduly restricted his right to cross-examine Panke as to the basis of probable cause or reasonable belief that appellant had committed an offense.
The record reflects that in appellant's cross-examination of Panke, the following occurred:
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