Valdez, Madalyn Sandra v. The State of Texas--Appeal from Co Crim Ct at Law No 2 of Harris County

Affirmed and Memorandum Opinion filed June 19, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00664-CR

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MADALYN SANDRA VALDEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the County Criminal Court at Law No. 2

Harris County, Texas

Trial Court Cause No. 1094879

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

Madalyn Sandra Valdez appeals a conviction for resisting arrest[1] on the grounds that: (1) the trial court erred in failing to grant her motion to suppress evidence; (2) the evidence is legally insufficient to show that she resisted arrest; and (3) the trial court erred in refusing to charge the jury with special instructions concerning the legality of the arrest. We affirm.

Motion to Suppress

Appellant s first issue argues that the trial court erred in failing to grant her motion to suppress evidence. However, because appellant has not cited, and we have not found, any portion of the record at which appellant ever presented or obtained a ruling on this motion,[2] her first issue presents nothing for our review and is overruled. See Tex. R. App. P. 33.1(a).

Sufficiency of Evidence

Appellant s second issue contends that the evidence is legally insufficient[3] to prove that she resisted arrest because: (1) she was already under arrest when her alleged assault on the police officer occurred; (2) the officer did not tell appellant she was being placed under arrest; (3) there was no indication of what offense appellant was being arrested for; and (4) there was no evidence that the officer suffered any injury or pain.

When reviewing legal sufficiency, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003). A person commits the offense of resisting arrest if he intentionally obstructs a person he knows is a peace officer from effecting an arrest by using force against the officer. See Tex. Pen. Code Ann. 38.03(a) (Vernon 2003).[4] The force must be used after the arrest begins and before it ends. See Lewis v. State, 30 S.W.3d 510, 512 (Tex.App. Amarillo 2000, no pet.). An arrest is complete when a person s liberty of movement is successfully restrained, whether by an officer s physical force or the suspect s submission to the officer s authority. Medford v. State, 13 S.W.3d 769, 773 (Tex. Crim. App. 2000).

In this case, appellant first kicked, hit, and pulled a police officer while the officer was attempting to arrest appellant s neighbor for evading arrest. When the officer then attempted to arrest appellant for interfering with the neighbor s arrest, appellant pushed, kicked, and hit him to prevent him from handcuffing her. A second officer was needed to subdue appellant. From this evidence, a rational trier of fact could have readily found that appellant intentionally obstructed the officer from arresting her by using force against him, as alleged in her indictment. Therefore, the evidence is legally sufficient to support appellant s conviction for resisting arrest, and her second issue is overruled.

Jury Instructions

Appellant s third issue argues that the trial court erred in denying her two article 38.23 jury instructions on the legality of her arrest because the evidence raised a fact issue whether the officer entered her neighbor s house without consent and arrested her without probable cause.

If an issue is raised whether evidence has been obtained illegally, article 38.23 requires the jury to be instructed that if it believes that, or has a reasonable doubt whether, evidence has been obtained illegally, the jury shall disregard the evidence. Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon Supp. 2003). By contrast, each of appellant s two requested instructions would have instructed the jury to find appellant not guilty if it found, or had a reasonable doubt, that the evidence was illegally obtained. Article 38.23 provides no authority for such an instruction on guilt. Moreover, because the illegality of an arrest is not an element of, or a defense to, the offense of resisting arrest,[5] appellant s instructions would have been incorrect under the law governing the offense as well. Therefore, appellant was not entitled to submission of the jury instructions she requested, her third issue is overruled, and the judgment of the trial court is affirmed.

/s/ Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed June 19, 2003.

Panel consists of Chief Justice Brister and Justices Fowler and Edelman.

Do Not Publish Tex. R. App. P. 47.2(b).

[1] A jury found appellant guilty, and the trial court assessed punishment at one year confinement, suspended the sentence, and placed appellant on community supervision for two years.

[2] Although appellant s brief indicates that the motion was denied at Reporter s Record Vol. 1, p. 85, that page does not pertain to the motion.

[3] Although the heading to appellant s second issue states that it is a factual sufficiency challenge, the body of the discussion under that heading presents only a legal sufficiency challenge. Therefore, we will address the legal sufficiency challenge set forth in the discussion rather than the unsupported factual sufficiency challenge alluded to in the heading.

[4] Because appellant cites no authority establishing that the elements she asserts are part of the offense of resisting arrest, we do not address the sufficiency of the evidence to prove whether (1) the officer told her she was under arrest; (2) there was any indication of what she was being arrested for; or (3) the officer suffered any pain or injury.

[5] See Tex. Pen. Code Ann. 38.03(b) (Vernon 2003); State v. Mayorga, 901 S.W.2d 943, 945 (Tex. Crim. App. 1995). The legality of an arrest is to be determined by a court rather than the use of self-help. See Mayorga, 901 S.W.2d at 945. Nor would appellant have been entitled to a correct article 38.23 instruction because evidence of resisting arrest is not obtained illegally, even in an unlawful arrest, if the arrest is based on objectively reasonable information. See id. at 946.