Bryant v. State
| Decision Date | 22 May 1996 |
| Docket Number | No. 10-95-188-CR,10-95-188-CR |
| Citation | 923 S.W.2d 199 |
| Parties | Marks Flynn BRYANT, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Michael B. Roberts, Waco, for appellant.
John W. Segrest, Criminal District Attorney, Wayne Coughran, Asst. District Attorney, Waco, for appellee.
Before CUMMINGS and VANCE, JJ.
Marks Flynn Bryant appeals a conviction of the misdemeanor offense of resisting arrest for which a jury assessed punishment at 180 days in the McLennan County Jail. TEX. PENAL CODE ANN. § 38.03 (Vernon 1994). Bryant brings six points on appeal. In point one, he contends that the State's evidence is insufficient to prove that he resisted arrest. In point two, he asserts that the court erred in overruling his Batson 1 challenge. Finally, in points three through six, he complains that the court erred by overruling his objections to the State's improper jury arguments. We will affirm the judgment.
On October 29, 1994, Marks' wife, Paula Mae Bryant, made a written complaint against Marks at the Bellmead Police Department for family violence. Because the offense was alleged to have occurred at the Bryant home just outside the Bellmead city limits, the Bellmead Police Department referred Paula's complaint to the McLennan County Sheriff's Department. As a result, Patrol Sergeant Kenneth Vanek and Deputy Miley Hudson of the Sheriff's Department were dispatched to the Bellmead Police Department to meet with Paula.
According to Sergeant Vanek, Paula appeared to be upset, scared, suffering from pain of bodily injuries, and concerned about the safety of her children back at her residence. Consequently, Sergeant Vanek and Deputy Hudson drove to the residence in their patrol car, followed by Paula and her sister in another vehicle. Sergeant Vanek parked in the driveway, while Paula parked on the street directly in front of the house.
After Sergeant Vanek knocked on the front door, Marks "came from around behind the house" to meet them on the front porch. Sergeant Vanek identified himself to Marks, explaining that he was with the Sheriff's Department and was investigating a family violence assault. Both officers were wearing clearly distinctive uniforms and insignia establishing their office.
According to Sergeant Vanek, Marks was perspiring, his breath smelled of alcohol, his speech was slightly slurred, and he appeared to be "agitated" and "excited." Deputy Hudson described Marks as "very excited" and testified that Marks was "sweating profusely" and appeared to be "somewhat chemically impaired." When Marks approached the officers, he immediately started "rambling and talking excitedly" about how their presence at his home was unnecessary. After listening to Marks for several minutes, Sergeant Vanek decided to place him under arrest. According to Deputy Hudson, Sergeant Vanek then told Marks:
Well, Mr. Bryant, we have a complaint against you for family violence. I'm going to have to arrest you and take you to jail.... If you will turn around and face the wall [and] place your hands behind you, we'll have to handcuff you and take you to jail.
As Sergeant Vanek attempted to handcuff Marks, a struggle ensued for about "10 to 12 seconds." The officers eventually subdued Marks, handcuffed his wrists, and placed him in the patrol car. In the interest of preserving an accurate description of the struggle, we set out, in part, the testimony describing the event:
SERGEANT VANEK--DIRECT EXAMINATION BY STATE
Q And when you told him that he was going to be handcuffed, then what did you do?
A I took hold of his right arm, about the wrist area.
Q Okay. Where were you standing at this time when you took ahold of his arm?
A I was standing on the porch, standing to his right side.
Q Where was Deputy Hudson standing?
A He was standing, I believe, on the edge of the steps, more or less on Mr. Bryant's left side.
. . . . .
Q Was he cooperating with you when you were attempting to, to arrest him at that time?
A No.
Q Did he give you any type of impression that he did not want to be arrested at that time?
A He resisted me when I was attempting to handcuff him. He resisted and tried to pull away from me.
. . . . .
Q Okay. On this particular occasion when you took his hand, what did he do?
A He stiffened up, jerked back like that.
Q And what did you do?
A Well, I just kept pressure holding his arms, trying to pull it back. And in that motion, he was coming around like this, toward me.
Q Okay. When he stiffened up and raised his hand, did his hand ever come close to your face?
. . . . .
A Okay. As he threw his arms like this, he come close to hitting me in the face.
. . . . .
Q How would you characterize the, the motion or movement of when you put your hand on the defendant and then his subsequent action?
A Well, I took hold of his wrist and just attempted to bring it around behind his back, to handcuff him, and at that point he tried to jerk away from me. And we, in this same motion, we--our, went off the porch.
. . . . .
Q As far as his jerking away movement, how would you characterize this movement?
A He jerked the arm, his right arm, I had ahold of, he attempted to jerk away from my hold, and in doing so, he swung his body around in an attempt, more or less, to face me head-on; and at that point in time I reached and grabbed him around the neck to gain better control of him.
. . . . .
Q When you put your arm around him, can you describe--or tell the members of the jury the reason for grabbing him around, I guess, the neck area or chest area.
A To get better control of him. I couldn't get ahold of his left arm, as it was away from me, and I wanted to keep him away from my gun side. So that was about the only position I could take hold of him to try to control him.
Q Were you having a hard time controlling him?
A Yes, I was.
Q Any particular reason for that?
A Well, he was very sweaty. His skin was very slick, and he, he was--as if he was trying to escape. He was trying to get off the porch, and, in fact, as he was going down off the porch, he stumbled, and we fell onto the ground.
Q Do you recall what Deputy Hudson was doing at this time, or could you tell?
A Yeah. He was trying to get control of his left arm and cuff his left arm.
Q After you fell to the ground, what happened--were you on the ground, also, with Mr. Bryant at this time?
A Yes, I was.
Q Did you ever let go of that wrist?
A No.
Q Did you have any fear of letting go of that wrist?
A Oh, yes.
Q What were your concerns?
A Well, I was concerned that he could injure me or could possibly gain control of a weapon.
Q And did you, once you went to the ground, did you attempt any further efforts at getting that right arm cuffed?
A Yes. I was still trying to bring his right arm around him, and he still had it stiff up under him. We were laying--he was laying face down on the ground as I was on top of him, and he still had his arm in a stiff manner underneath him.
Q You could feel the arm being stiffened?
A Yes.
. . . . .
Q Sergeant Vanek, when you had the defendant there on the ground and his right arm was stiffened up and you were trying to put the cuff on it, and I believe you testified that Officer Hudson had the left arm and may have gotten the cuff on it, the defendant made a statement.
A Yes, he did.
Q And what did he tell you?
A He said,
Q Now, within the context of [your written report], you have made a very simple statement, I believe--and you correct me if I'm wrong--that the defendant simply resisted to the extent--why don't you refer to your report? You say that he resisted--he resisted--
A Okay. Said "He tried to break from me and resisted to the degree that myself and Officer Hudson had to force him to the ground to finally be able to restrain him enough to place the cuffs on him."
. . . . .
Q And that was in response to his raising his arm or pulling his arm away from you?
A That was not the--I did not attempt to force him to the ground to gain control of him. As I had ahold of his right arm and he went to pull away from me, I put my left arm around his neck. And at that point, he was in a forward motion, at which time carried myself and him off of the porch, and we could not maintain our balance and we fell to the ground.
Q Do you recall the defendant ever making any moves?
A At that time, you know, at the time that the sergeant placed his hand on there and started to turn him towards the wall, the defendant twisted, swung around, and you know, his elbow came back to the sergeant like that. And the spinning motion carried him around to facing me to where his left elbow came towards me. I grabbed for his left arm, and my hand slipped off his arm at that time. Do you want me to go on?
Q Sure. Go right ahead.
A As he spun around--the sergeant, with his hand on his right bicep, you know--spun around--the sergeant reached around him to get control of him. Like I say, I was over here. My hand slipped off his arm, this spinning motion carried him off the porch, and they stumbled at this time, falling towards the ground.
Well, I was just right in behind him, reaching for that left arm that I had lost control of. They fell to the ground with the sergeant basically on top of the defendant, you know, and--
. . . . .
Q Could you see any reason for this action of the defendant, his twisting and pulling?
. . . . .
A Well, the defendant apparently just did not want to be arrested and was trying to, you know, do whatever he could to break free and prevent us from handcuffing him.
. . . . .
Q As far as the, the action that the defendant took right after being told he was going to be handcuffed, how would you characterize his move?
A Well, I, I would call it a rather violent backward swing, you know, to maybe...
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Campbell v. State
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Jury Selection and Voir Dire
...party’s explanation, for example, by showing that the explanation was merely a sham or a pretext for discrimination. Bryant v. State, 923 S.W.2d 199 (Tex.App.—Waco 1996). On a Batson challenge the inquiry is limited only to the facial validity of the challenging party’s explanation for exer......
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Jury Selection and Voir Dire
...party’s explanation, for example, by showing that the explanation was merely a sham or a pretext for discrimination. Bryant v. State, 923 S.W.2d 199 (Tex.App.—Waco 1996). On a Batson challenge the inquiry is limited only to the facial validity of the challenging party’s explanation for exer......
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Jury Selection and Voir Dire
...party’s explanation, for example, by showing that the explanation was merely a sham or a pretext for discrimination. Bryant v. State, 923 S.W.2d 199 (Tex.App.—Waco 1996). On a Batson challenge the inquiry is limited only to the facial validity of the challenging party’s explanation for exer......
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Jury Selection and Voir Dire
...party’s explanation, for example, by showing that the explanation was merely a sham or a pretext for discrimination. Bryant v. State, 923 S.W.2d 199 (Tex.App.—Waco 1996). On a Batson challenge the inquiry is limited only to the facial validity of the challenging party’s explanation for exer......