Hartis v. State

• Decision Date: 13 December 2005
• Docket Number: No. 14-04-00441-CR.,14-04-00441-CR.
• Citation: 183 S.W.3d 793
• Parties: Eugene Morris HARTIS, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

183 S.W.3d 793

Eugene Morris HARTIS, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 14-04-00441-CR.

Court of Appeals of Texas, Houston (14th Dist.).

December 13, 2005.

COPYRIGHT MATERIAL OMITTED

Charley L. Smith, Bellville, for appellants.

Daniel W. Leedy, Bellville, for appellees.

Panel consists of Justices EDELMAN, SEYMORE, and GUZMAN.

OPINION

EVA M. GUZMAN, Justice.

We withdraw our opinion of August 30, 2005, and issue this substitute opinion.

A jury convicted appellant Eugene Morris Hartis, Jr. of resisting arrest or transportation, and the trial court sentenced him to 180 days in jail and a $4,000 fine.¹ In four issues, appellant challenges (1) the legal and factual sufficiency of the evidence supporting his conviction; (2) the trial court's denial of his motion for election; and (3) the trial court's admission of portions of a videotape evidencing his arrest. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The events at issue began with a traffic stop by Officer William Palmer of the Sealy Police Department on November 21, 2002 after he observed appellant exceeding the posted speed limit. Appellant insisted that he was not speeding and refused to sign the citation. After Palmer informed appellant that he would be arrested if he did not sign, appellant replied, "Well, then, you do it." Appellant submitted to being handcuffed, but struggled with Palmer as they walked to the patrol car. The entire encounter was recorded on videotape by a camera inside Palmer's patrol car. Appellant was taken to the Austin County Jail and was subsequently charged by information with "prevent[ing] or obstruct[ing]" Palmer "from effecting an arrest, a search, or transportation," a violation of TEX. PEN. CODE ANN. § 38.03 (Vernon 2002).

Appellant made a motion for election, stating that there are three ways in which one can commit an offense violating Section 38.03, and asking the trial court to order the State to identify which of these ways it would attempt to prove. But, at the hearing on the motion, appellant took a different position, and argued that this section actually constitutes three different offenses, rather than three ways to commit a single offense; therefore, the basis of appellant's motion is unclear. Appellant also filed a motion in limine, seeking to exclude a portion of the State's videotaped evidence. The trial court denied both motions. At the conclusion of the trial, the court issued a jury charge that asked jurors to determine whether appellant was guilty of resisting arrest and also whether he was guilty of resisting transportation.² The jury unanimously found him guilty of each individual charge.

II. ISSUES PRESENTED

In four issues before us, appellant challenges (1) the legal and factual sufficiency of the evidence supporting a conviction for resisting arrest; (2) the legal and factual sufficiency of the evidence supporting a conviction for resisting transportation; (3) the trial court's ruling on his motion for election; and (4) the trial court's ruling on his motion in limine. For the sake of clarity, we address these issues chronologically, reflecting the order in which they arose in the court below. We therefore turn first to appellant's third issue.

III. DISCUSSION

A. Did the trial court err by denying appellant's motion to require the State to elect a theory of prosecution under Section 38.03?

In appellant's brief, he argues the trial court erred in denying his motion to require election because "[section 38.03] provided three ways to commit the offense and the state should be required to specify the manner in which the [appellant] violated the statute." By denying his motion, appellant argues his ability to prepare a defense was impacted because he "could have made different motions, pretrial motions, presented different evidence and different motions for directed verdict." He also argues the trial court's ruling "clearly confused the jury." Because we conclude that section 38.03 states only one offense, and that appellant was on notice of the offense alleged in the information, we overrule appellant's third issue.

The State is not required to elect between separate manners and means of committing the same offense. Rodriguez v. State, 970 S.W.2d 66, 69 (Tex.App.-Houston [14th Dist.] 1998, pet. ref'd) ("[t]he State may plead all three forms of delivery [of cocaine] and it may not be forced to elect a particular method on which to prosecute"); Braughton v. State, 749 S.W.2d 528, 530 (Tex.App.-Corpus Christi 1988, pet. ref'd) ("[t]he State need not elect between various theories alleged and the jury may consider all theories and return a general verdict of guilty") (citing Cook v. State, 741 S.W.2d 928, 935 (Tex. Crim.App.1987) (en banc) and Franklin v. State, 606 S.W.2d 818, 821 (Tex.Crim.App. 1979) (en banc)). Although a defendant may be charged multiple times for committing the same offense in different ways,³ where only a single offense is charged, and when that offense can be committed in more than one way, a defendant is entitled to be informed of the manner in which he allegedly violated the statute. See Ferguson v. State, 622 S.W.2d 846, 850 (Tex. Crim.App. [Panel Op.] 1981).

In addressing this issue, we must first decide whether section 38.03 addresses more than one offense. If it does, then appellant was entitled to force the State to elect which offense it would attempt to prove. But, if the statute instead addresses various ways to commit a single offense, we must determine whether the State informed appellant of the type of violation it would attempt to prove.

1. Section 38.03 addresses only one offense

Section 38.03 of the Texas Penal Code states:

Resisting Arrest, Search, or Transportation

(a) A person commits an offense if he intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer's presence and at his direction from effecting an arrest, search, or transportation of the actor or another by using force against the peace officer or another.

TEX. PEN.CODE ANN. § 38.03 (Vernon 2002). Appellant argues arrest, search, and transportation constitute three separate offenses, whereas the State argues these words describe three different ways of committing a single offense. Although we approached the issue in dicta in Vaughn v. State, 983 S.W.2d 860 (Tex.App.-Houston [14th Dist.] 1998, no pet.), this is the first time that this court has been asked to address this issue directly.

In Vaughn, the defendant pleaded not guilty to the offense of resisting arrest under section 38.03. On appeal, he challenged both the legal and factual sufficiency of the evidence to support his conviction of the offense as charged in the information. Id. at 861-862. Vaughn's information stated:

Defendant, on or about January 30, 1997, did then and there unlawfully intentionally PREVENTS [sic] a person he knows is A PEACE OFFICER from effecting AN ARREST of LARRY MICHAEL VAUGHN buy using force against S.D. THOMPSON, namely by STRIKING S.D. Thompson WITH HIS HANDS.

Id. To convict Vaughn under this information, the State was required to prove beyond a reasonable doubt the elements of the offense with which he was charged. See id. at 862. Those elements were (1) that the appellant intentionally; (2) prevented or obstructed; (3) a person he knows is a peace officer; (4) from effecting an arrest; (5) of himself; and (6) by using force against the peace officer. Id. At trial, Officer Thompson testified that Vaughn "wasn't under arrest, but he was resisting just me detaining him...." Id. at 863. He further testified that Vaughn's action in flailing his arms did not constitute force directed against him, but was to avoid being handcuffed. Id. We concluded that the evidence was legally insufficient to support appellant's conviction because no evidence established defendant was ever under arrest. Id.

Though not necessary to the holding of the case, this court also stated:

Three different offenses are covered in section 38.03—resisting arrest, resisting search or resisting transportation.... The State could have charged appellant alternatively with all three offenses which would have forced appellant to file a motion to quash the information and require the State to charge him more specifically. See Ferguson v. State, 622 S.W.2d 846, 850 (Tex.Crim.App.1981). Rather, the State charged appellant specifically with resisting arrest, thus relieving appellant from defending against the other two offenses.

Id. at 862. As support for the conclusion that resisting arrest, resisting search, and resisting transportation constitute three separate offenses, this court merely restated the statute and cited to Ferguson. Id. at n. 1. A closer reading of Ferguson, however, reveals that Ferguson did not address a situation in which more than one offense was or could have been alleged. To the contrary, Ferguson explained that there can be more than one type of act or omission by which a defendant could commit the same offense.⁴

In Ferguson, the defendant was charged with delivery of a controlled substance, and the Court noted that the statute allowed "three different and distinct ways of establishing the accused's criminal conduct." Ferguson, 622 S.W.2d at 850 (emphasis added). The Court of Criminal Appeals found that the type of delivery the State would attempt to prove would be critical to the appellant's defense, because the "`delivery' is the act by the appellant which constitutes the criminal conduct." Id. Accordingly, the Court held that when there is more than one distinct manner by which the defendant could have committed an offense, the State must put the defendant on notice of the manner it intends to prove. Id. 622 S.W.2d at 851.

Ferguson was applicable to the facts in Vaughn, and would have dictated the same result that Vaughn reached. By stating in the information that Vaughn resisted arrest, the State provided notice to Vaughn that it...