Dobbs v. State

• Decision Date: 25 June 2014
• Docket Number: No. PD–0259–13.,PD–0259–13.
• Citation: 434 S.W.3d 166
• Parties: Atha Albert DOBBS, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

434 S.W.3d 166

Atha Albert DOBBS, Appellant

v.The STATE of Texas.

No. PD–0259–13.

Court of Criminal Appeals of Texas.

June 25, 2014.

Forrest L. Sanderson, Bastrop, for Appellant.

John R. Messinger, Assistant State Prosecuting Attorney, Lisa C. McMinn, State's Attorney, Austin, for the State.

OPINION

ALCALA, J., delivered the opinion of the Court in which KELLER, P.J., PRICE, WOMACK, JOHNSON, KEASLER, HERVEY, and COCHRAN, JJ., joined.

In his petition for discretionary review, Atha Albert Dobbs, appellant, challenges the sufficiency of the evidence to sustain his conviction for resisting arrest with a deadly weapon. SeeTex. Penal Code § 38.03(a), (d). A jury convicted appellant of that offense after he, during an attempt by police officers to arrest him at his home, exhibited a firearm, refused to put the weapon down when ordered to do so, and expressed his intent to use the firearm to shoot himself, but never threatened to use the weapon against the officers. Because we conclude that no rational juror could have found that appellant's conduct constituted a use of force against a peace officer as required by the resisting-arrest statute, we hold that the evidence is insufficient to sustain appellant's conviction. We reverse the judgment of the court of appeals and render a judgment of acquittal.

I. Background

In September 2010, appellant was living with his wife, Dawn, and her two daughters in Washington County when one of the daughters told Dawn that appellant had been sexually abusing her for several years. Dawn and her daughters moved out of the house the following day. Dawn contacted the police to report her daughter's allegations, and a warrant was issued for appellant's arrest.

Because Dawn had indicated to police that appellant might resist arrest or attempt to harm himself, five sheriff's deputies were dispatched to his house to carry out the warrant. Appellant saw the deputies approach the house through the kitchen window, and he retrieved a loaded pistol out of his gun cabinet. The deputies surrounded the house and could see inside through the windows. Two of the deputies went to the back of the house, two to the side, and one officer, Deputy Kokemoor, approached the front door. From his position, Kokemoor could see appellant walking toward the door with a gun in his hand. One officer shouted to the others that appellant was holding a gun. The officers drew their weapons, and Kokemoor ordered appellant to put down the gun. Appellant did not comply. Instead, he pointed the gun at his own temple. Although Kokemoor could not hear what appellant was saying, it appeared to him that appellant was repeatedly mouthing the words, “I'm going to kill myself.”

Appellant then turned around and retreated deeper into the house. Kokemoor, believing that appellant was suicidal and not a threat to the officers, lowered his gun, pulled out his taser, and entered the house. Upon realizing that Kokemoor had entered, appellant began to run into the living room, where the deputy shot him with the taser. Appellant then fell to the floor, pinning one hand beneath himself while his other hand was still holding the gun. When appellant did not comply with Kokemoor's instruction to put his hands behind his back, the deputy tasered appellanta second time and then kicked the gun out of appellant's hand. Appellant was arrested and transported to jail.

Appellant was charged with continuous sexual abuse of a young child, aggravated sexual assault, and resisting arrest. The resisting-arrest offense was elevated from a misdemeanor to a third-degree felony because the State alleged that appellant had used a deadly weapon during commission of the offense.¹ At trial, the jury was unable to reach a unanimous verdict on the continuous-sexual-abuse and aggravated-sexual-assault offenses, and the trial court declared a mistrial with respect to those two offenses. However, the jury did find appellant guilty of resisting arrest with a deadly weapon, and it sentenced him to six years in prison and assessed an $8,000 fine.

On appeal, appellant argued that the evidence was insufficient to sustain his conviction because the State failed to prove that he “us[ed] force against” a peace officer within the meaning of that phrase as it appears in the resisting-arrest statute. SeeTex. Penal Code § 38.03(a); Dobbs v. State, No. 01–11–01126–CR, ––– S.W.3d ––––, ––––, 2013 WL 561485, at *6 (Tex.App.-Houston [1st Dist.] Feb. 14, 2013). Specifically, appellant contended that he had merely exhibited a firearm, and that such conduct cannot constitute a use of force against a peace officer. The court of appeals disagreed. Regarding the element of force, the court of appeals observed that “a person can forcefully resist an arrest without successfully making physical contact with the officer,” and it further observed that “actions which endanger an officer” or that threaten an officer with imminent bodily injury may constitute use of force. Dobbs, 2013 WL 561485, at *4. With respect to the meaning of the word “against” as it is used in the statute, the court of appeals stated that “[c]ourts have made it clear that Section 38.03 does not require action directed at or toward an officer; rather, it only requires force exerted in opposition to the officer's efforts at making an arrest.” Id. (citing Pumphrey v. State, 245 S.W.3d 85, 90–91 (Tex.App.-Texarkana 2008, pet. ref'd); Hopper v. State, 86 S.W.3d 676, 679 (Tex.App.-El Paso 2002, no pet.)).

Applying those principles to the facts of appellant's case, the court of appeals concluded that the evidence was sufficient to support his conviction for resisting arrest. Id. at –––– – ––––, 2013 WL 561485 at *5–6. It explained,

Appellant retrieved a gun in direct response to the officers' arrival to arrest him for the offense of sexual assault of a child. Appellant displayed the gun as he walked toward Deputy Kokemoor.... Appellant refused to put the gun down despite being instructed to do so.... The officers could not arrest appellant because he would not voluntarily relinquish the gun.... Viewed objectively, the evidence supports an inference that appellant's conduct was ‘in opposition’ to the officers' effectuating his arrest.

Id. at ––––, 2013 WL 561485 at *5. Thus, basing its analysis on the fact that appellant's conduct was “designed to oppose the officer's ability to complete the arrest,” the court concluded that “the jury could have found that his conduct was ‘against’ the officer.” Id.

II. Evidence Is Insufficient to Sustain Appellant's Conviction

In his sole ground for review, appellant asserts that the evidence is insufficient to prove that he “us[ed] force against [a] peace officer” as required by the resisting-arrest statute. SeeTex. Penal Code § 38.03(a). We agree that the evidence is insufficient to sustain the jury's finding that appellant used force against a peace officer within the meaning of the resisting-arrest statute. Id.

A. Standard of Review

We review the sufficiency of the evidence to establish the elements of a criminal offense under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); see also Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App.2010). Under that standard, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 318–19, 99 S.Ct. 2781; see also Adames v. State, 353 S.W.3d 854, 859–60 (Tex.Crim.App.2011). Circumstantial evidence is as probative as direct evidence in establishing the guilt of the actor, and circumstantial evidence alone may be sufficient to establish guilt. Carrizales v. State, 414 S.W.3d 737, 742 (Tex.Crim.App.2013) (citing Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007)).

The jury is the sole judge of credibility and weight to be attached to the testimony of witnesses. See Jackson, 443 U.S. at 319, 99 S.Ct. 2781. When the record supports conflicting inferences, we presume that the jury resolved the conflicts in favor of the verdict, and we defer to that determination. Id.; see also Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007) (observing that it is the fact-finder's duty “to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts”) (quoting Jackson, 443 U.S. at 319, 99 S.Ct. 2781). Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Hooper, 214 S.W.3d at 13.

When we interpret enactments of the Legislature, “we seek to effectuate the collective intent or purpose of the legislators who enacted the legislation.” Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991) (citations omitted). We focus our analysis on the literal text of the statute and “attempt to discern the fair, objective meaning of that text at the time of its enactment.” Id. Where that language is clear and unambiguous, we will give effect to its plain meaning, unless that meaning would lead to absurd consequences that the Legislature could not have intended. Id.

B. Resisting–Arrest Statute Requires Proof of Force Directed At or In Opposition to Officer

Appellant's sufficiency challenge necessarily requires us to determine what the Legislature would have intended by its use of the phrase “using force against the peace officer or another.” SeeTex. Penal Code § 38.03(a); see also Boykin, 818 S.W.2d at 785. The complete statutory elements of the offense of resisting arrest are that a person:

(1) “intentionally prevents or obstructs”

(2) “a person he knows is a peace officer or a person acting in a peace officer's presence and at his direction”

(3) “from effecting an arrest, search, or transportation of the actor or another” (4) “by using force against...