ZANE AARON WHITE, FROM A COUNTY COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-00717-CR
ZANE AARON WHITE,                                FROM A COUNTY COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
        APPELLEE.                                          OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES HOWELL, THOMAS AND OVARD
OPINION BY JUSTICE THOMAS
AUGUST 21, 1989
        Zane Aaron White appeals from a conviction of resisting arrest. After a jury verdict of guilty, the trial court assessed punishment at twelve months' confinement in the Dallas County Jail, probated for twenty-four months. In three points of error, White complains that: (1) the evidence is insufficient to support the judgment because the State failed to sustain its burden of proof on an essential element of the offense; (2) the evidence is insufficient to support the judgment because he was justified in responding to the use of excessive force on the part of the arresting officers; and (3) the trial court erred in failing to declare a mistrial after the admission of evidence of extraneous offenses. We disagree and, accordingly, affirm the trial court's judgment.
FACTUAL BACKGROUND
        Members of the Dallas Vice Squad conducted an inspection at Borrowed Money, a local Dallas nightclub (the Club), after receiving a number of complaints about the establishment from residents and businesses. Several plainclothes police officers entered the Club for the purpose of inspecting for liquor violations. During a one-hour period, they observed a number of violations. Because of the large crowd in the Club, uniformed officers were called to assist in making the arrests.
        Several customers were arrested on charges of public intoxication, and the manager was charged with allowing intoxicated persons to remain in the Club. During the arrests, White, who was employed as a doorman at the Club, had a confrontation with Dale Erves, one of the undercover police officers. This confrontation escalated into a brawl between White and several police officers. White was ultimately arrested and charged with disorderly conduct and resisting arrest.
STANDARD OF REVIEW
        In the first two points of error, White contends that the evidence is insufficient to support the conviction. Sufficiency of the evidence is measured by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 319 (1979): "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." See Dickey v. State, 693 S.W.2d 386, 387 (Tex. Crim. App. 1984). This inquiry is a question of law. It is irrelevant whether we as a court believe the evidence, or believe that the defense's evidence "outweighs" the state's evidence. If there is any evidence that establishes guilt beyond a reasonable doubt and if the trier of facts believes that evidence, we are not in a position to reverse the judgment on sufficiency of the evidence grounds. Combs v. State, 643 S.W.2d 709, 716 (Tex. Crim. App. 1982). See also Moss v. State, 574 S.W.2d 542, 544 (Tex. Crim. App. 1978).
RESISTING ARREST
        In the first point of error, White contends that the evidence is insufficient to support the judgment because the State failed to prove that he knew Erves was a police officer when the confrontation occurred. White asserts that Erves never identified himself as a police officer and that he was not wearing a badge. White further argues that the evidence demonstrated that Erves initiated physical contact with him merely because White had been "mouthing" to the officer.
        Section 38.03(a) of the Texas Penal Code states that a person resists arrest if he "intentionally prevents or obstructs a person he knows is a peace officer . . . from effecting an arrest . . . by using force against the peace officer . . . ." TEX. PENAL CODE ANN. §38.03(a) (Vernon 1974). The jury heard testimony from several of the police officers. The State's witnesses told the jury that at the time the arrests began each of the undercover officers wore a badge and each worked with a uniformed officer.
        Erves worked with Officer Allen Foster. Erves explained they arrested two or three customers for public intoxication. Each time they attempted to walk a customer toward the designated holding area, White stood in the pathway making it difficult to get around him. Finally, on one occasion, White started cursing Erves telling him the police did not have the right to be there arresting the customers and that they should "get the f out of the club." Erves informed White that he was interfering with the police and that he needed to leave the location or he would be placed under arrest for disorderly conduct. White continued to carry on, cursing and yelling, for the officers to leave the Club. Erves informed White that he was under arrest for disorderly conduct and tried to grab White's arm in order to apply the handcuffs. White pulled away and immediately struck Erves in the face. When this occurred, a uniformed officer came over to assist Erves. The two officers struggled with White as other officers approached to help. During this time, White was fighting, kicking, and hitting all of the officers. The only conflicting testimony concerning the circumstances surrounding the initial altercation came from White.
        Based upon a review of the record, we hold that sufficient evidence existed to support the jury's finding that White resisted arrest. A jury is empowered to listen to testimony, weigh the evidence, and determine the weight and credibility of any witness's testimony. Williams v. State, 692 S.W.2d 671, 676 (Tex. Crim. App. 1984). Although conflicting testimony was adduced at trial, it was the province of the jury to make credibility determinations, and a rational trier of fact could have found all the elements of resisting arrest based on the witnesses' testimony. We overrule point one.
USE OF FORCE
        In the second point of error, White contends that the evidence is insufficient to support the judgment because the force used by Erves in making the arrest was unreasonable. Section 9.31 of the Texas Penal Code reads in pertinent part that:
 
 
        (c)        The use of force to resist an arrest         or search is justified:
        
            (1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and
 
            (2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer's (or other person's) use or attempted use of greater force than necessary.
TEX. PENAL CODE ANN. § 9.31(c) (Vernon 1974). In order for White's defensive theory to be applicable, the police officers must have used greater force than necessary before White offered any resistance.
        White argues that he confronted Erves verbally and Erves responded physically. He contends that the evidence demonstrated that after Erves grabbed him other officers immediately joined the fray. Here again, the only evidence to support the unreasonable force theory is derived from White's testimony. Other witnesses testified that upon being told that he was under arrest, White immediately struck Erves. As we have previously stated, the credibility of the witnesses and the weight to be given their testimony is for the trier of fact. Williams, 692 S.W.2d at 676; see Coe v. State, 683 S.W.2d 431, 438 (Tex. Crim. App. 1984). Moreover, we must view the evidence in the light most favorable to the verdict. White v. State, 601 S.W.2d 364, 365-66 (Tex. Crim. App. 1980). We overrule point two.
EXTRANEOUS OFFENSES
        In the third point of error, White asserts that the trial court permitted the introduction of evidence of extraneous offenses that was so prejudicial and inflammatory a mistrial should have been granted. White complains of five instances during the trial where testimony was elicited that referred to the possibility that he was intoxicated at the time of his arrest. The evidence further indicated that he was intoxicated because of something other than alcohol. Various police officers testified that they thought he was on some kind of drug. We hold that White has waived any complaint concerning the introduction of this evidence.
        The record shows that White's counsel initially began this line of questions when he asked the first witness of the trial, "[D]id he seem intoxicated to you?" On redirect, the prosecution asked, "Do you believe he [White] was on some other kind of intoxicant besides alcohol?" Without objection, the witness responded, "yes." Further, without objection, this witness testified on redirect and recross- examination that White's actions were consistent with how an individual acts while on drugs, although he could not state what kind of drug. It was not until the next witness that White objected to the introduction of evidence concerning his alleged state of intoxication and to the fact that it was not related to alcohol. While the trial court sustained this objection, White did not request that the jury be instructed to disregard the testimony, nor did he make a motion for a mistrial. The other cited instances where the jury was allowed to hear testimony to the effect that White appeared to be on drugs occurred without objection.
        The proper procedure for preserving error at trial is (1) a timely objection, followed by (2) a request that the jury be instructed to disregard, and (3) a motion for mistrial. Brooks v. State, 642 S.W.2d 791, 798 (Tex. Crim. App. 1982). In the present case, White's objection was sustained; he did not request any further relief. By failing to request that the jury disregard the testimony and that a mistrial be ordered, White preserved nothing for this Court to review. Further, assuming arguendo, that admission of the evidence was erroneous and that the complaint has been properly preserved, we hold that the error was harmless beyond a reasonable doubt. TEX. R. APP. P. 81(b)(2). Inadmissible evidence can be rendered harmless if other evidence at trial is admitted without objection and it proves the same fact that the inadmissible evidence sought to prove. Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986). We overrule the third point of error and affirm the trial court's judgment.
 
                                                          
                                                          LINDA THOMAS
                                                          JUSTICE
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90.
 
88-00517.F
 
 
 
 
File Date[01-02-89]
File Name[880717]