GARY ALAN TINSLEY,FROM A COUNTY COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-00910-CR
GARY ALAN TINSLEY,FROM A COUNTY COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
        APPELLEE. OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES HOWELL, ROWE, AND BURNETT
OPINION BY JUSTICE BURNETT
JULY 6, 1989
        A jury found appellant, Gary Alan Tinsley, guilty of resisting arrest in violation of section 38.03(a) of the Texas Penal Code. The trial court assessed punishment at confinement in the Dallas County Jail for forty-five days, probated for a period of twelve months. The trial court also fined appellant $200.00. Appellant raises six points of error. We affirm the judgment of the trial court.
        On October 30, 1986, Officer Richard V. Crosby testified that he saw a red Mercedes driving approximately fifty miles per hour in a thirty-five mile per hour zone. Officer Crosby signaled for the car to stop by holding out his hand in a stop motion. Officer Crosby said that the driver of the red Mercedes looked in his direction and then accelerated past him. Officer Crosby got on his motorcycle and followed the red Mercedes. Officer Crosby said that he turned the motorcycle's red lights and siren on. As Officer Crosby was catching up with the red Mercedes, the Mercedes pulled over and stopped.
        After appellant, who was driving the red Mercedes, showed Officer Crosby his driver's license and proof of insurance, Officer Crosby asked appellant to step out of the vehicle, and appellant complied. Once appellant was out of the car, Officer Crosby told appellant he was under arrest and placed a handcuff on appellant's left wrist. Officer Crosby testified that appellant said something to him and then pulled towards the car, pulling or jerking Officer Crosby with him. Officer Crosby, who nearly lost his balance, pulled appellant back and applied a light carotid hold on appellant, who then dropped down to his knees and spun out of Officer Crosby's hold. Appellant lost his balance and Officer Crosby "got back on top of him and applied [the carotid hold] a little bit harder." Appellant continued to squirm and struggle until, after a little while, he stopped struggling and Officer Crosby placed the other handcuff on him.
        Appellant testified that he did not see the officer signal him to stop. Appellant also said that he did not see any police lights or hear any siren. Appellant said that after the officer placed the handcuff on his left hand, he wanted to roll his window up and lock his car, so he pulled in the direction of the car, and the officer also pulled. Appellant said that he was wearing dress shoes, lost his balance, started slipping, fell towards the officer, and cut himself on the officer's badge. Appellant said that the first choke hold did not cause him any trouble breathing, but the second choke hold did. Appellant described the first hold as a medium hold. Appellant said that the officer pushed him to the ground and then put him in a "big time choke."
INSTRUCTION REQUEST
        In point of error one, appellant contends that the trial court erred in denying his request for instructions and a definition that pulling away is not force constituting resisting arrest. The Texas Penal Code does not define the term "force" in the context of "intentionally prevent[ing] . . . a peace officer . . . from effecting an arrest . . . by using force against the peace officer . . . ." TEX. PENAL CODE ANN. § 38.03(a) (Vernon 1974). Where there are no statutory definitions of a term, the trial court is not obligated to give an instruction if the term has a common and ordinary meaning so that the jury can be fairly presumed to know and apply such meaning. Anderson v. State, 707 S.W.2d 267, 270 (Tex. App.--Houston [1st Dist.] 1986, no pet.). Furthermore, a defendant is entitled to an affirmative submission of defensive issues, but pulling away is not a defensive issue. Id. Appellant's first point of error is overruled.
SURPRISE WITNESS
        In point of error two, appellant contends that the trial court erred in allowing State witness Ken Harrison to testify even though the State never included Harrison's name on its witness list. Appellant complains that the State did not even contact Harrison until the date of trial. Appellant argues that he was not provided an opportunity to ask the venirepersons whether they knew Ken Harrison, that the State's failure to produce Harrison's name was the result of lack of diligence, that appellant has shown bad faith on the part of the State, and that appellant would have presented his defense differently had the State revealed Harrison's identity; therefore, appellant claims he has shown reversible error.
        When the trial court permits a witness who was not included within a witness list to testify, the standard of review is whether the trial court abused its discretion in allowing the witness to testify. Hightower v. State, 629 S.W.2d 920, 925 (Tex. Crim. App. 1981). When determining whether there has been an abuse of discretion, appellate courts consider whether there has been a showing of bad faith on the part of the prosecutor in failing to disclose ahead of time the name of the witness. Id. Another factor appellate courts consider is whether appellant could have reasonably anticipated that the witness would testify although the witness's name was not included within the witness list. Id.
        The statement of facts shows that Harrison never came forward to the police to inform them that he was a witness. The statement of facts also show that defense counsel's private investigator contacted Harrison a couple months after the incident. The prosecutor contacted Harrison on the day of trial. The statement of facts does not reveal how the prosecutor learned that Harrison was a witness or when the prosecutor learned Harrison was a witness. Because defense counsel's private investigator contacted Harrison before the State, appellant could have reasonably anticipated that Harrison would testify although the State had not included Harrison's name on its witness list. Regarding not being given the opportunity to ask the venirepersons whether they knew Harrison, the record reflects that before the trial court allowed Harrison to testify, the trial court asked each individual juror in the case whether they knew Harrison. All six jurors responded negatively. We hold that the trial court did not abuse its discretion in allowing Harrison to testify. Appellant's second point of error is overruled.
PULLING AWAY
        In point of error three, appellant asserts that the trial court erred in overruling his motion for instructed verdict because appellant's action of pulling away was not sufficient force to constitute resisting arrest. See Raymond v. State, 640 S.W.2d 678, 679 (Tex. App.--El Paso 1982, pet. ref'd). In Raymond, the defendant twice pulled his arm out of the arresting officer's grasp. Because these actions did not constitute violence towards the officer, the court reversed the conviction. Id. at 679. The evidence in the present case shows that once the arresting officer had a handcuff on appellant, appellant forcibly jerked or pulled the officer toward appellant's car and caused the officer to nearly lose his balance. The arresting officer also testified that appellant's resistance while the officer had only one handcuff on appellant caused the officer to fear for his safety; the officer testified: "I held the [free] handcuff with my left hand because I didn't want it swinging around because it's got that thing that could gouge you or poke your eye out or something . . . ." Harrison testified that appellant and the officer fell to the ground and that there was a struggle. The evidence shows that appellant went beyond merely pulling his arm out of the arresting officer's grasp and is thus distinguishable from Raymond. See Talavera v. State, 626 S.W.2d 618, 619 (Tex. App.--El Paso 1982, no pet.). Appellant's third point of error is overruled.
POSTARREST RESISTANCE
        In point of error four, appellant maintains that the trial court erred in overruling his motion for instructed verdict because appellant's actions occurred after the arrest was complete; therefore, argues appellant, his actions could not constitute resisting arrest. Appellant relies upon Young v. State, 622 S.W.2d 99 passim (Tex. Crim. App. [Panel Op.] 1981). In Young, the appellant was arrested and taken to a security office to await transportation to the city jail. When the transporting officers arrived, appellant pulled away, swung his arms, and struck an officer. The court relied upon article 15.22 of the Texas Code of Criminal Procedure to determine that the defendant may have been guilty of aggravated assault on a peace officer or attempted escape but not of resisting arrest, because the defendant's resistance occurred after the arrest was completed. Article 15.22 provides: "A person is arrested when he has been actually placed under restraint or taken into custody by an officer or person executing a warrant of arrest, or by an officer or person arresting without a warrant." TEX. CODE CRIM. PROC. ANN. art. 15.22 (Vernon 1977). Because appellant's resistance occurred even as the officer was attempting to place appellant under restraint, Young is distinguishable. See Cates v. State, 752 S.W.2d 175, 178 (Tex. App.--Dallas 1988, no pet.); Talavera, 626 S.W.2d at 619. Appellant's fourth point of error is overruled.
MOTION TO QUASH
        In point of error five, appellant argues that the trial court erred in denying his motion to quash the information. The information alleged that appellant:
 
 
        did unlawfully then and there intentionally prevent and obstruct RICHARD V. CROSBY, JR., a person that the defendant knew to be a peace officer, from effecting the arrest of the defendant, by using force against the peace officer, to-wit: by struggling with [the] peace officer as he was placing [the] handcuffs on [defendant].
Appellant complains that the word "struggling" in the information is so vague that it does not give appellant sufficient notice of the manner and means by which appellant resisted arrest.
        The verb "struggle" is defined as: "to make strenuous or violent efforts against opposition." WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY 1170 (1985). The evidence showed that appellant did not kick, poke, hit, trip, or elbow the arresting officer; rather, the evidence showed that appellant made strenuous and sometimes violent efforts against the arresting officer as the officer was attempting to place the handcuffs on appellant. This is precisely what the information alleged. Appellant's fifth point of error is overruled.
HEARSAY
        In point of error six, appellant contends that the trial court erred in allowing into evidence an inadmissible hearsay statement by a State's witness. Over objection, the backup police officer testified:
 
 
        The dispatcher stated that there is a motor officer having trouble with a person who was refusing to stop, and then he, again, the dispatcher saying I believe that person is having trouble with that person in the car at this time. And from -- from the way the dispatcher [was] sounding, I decided to speed up because there seemed like there was some kind of trouble at the scene.
The backup officer further testified that once he arrived at the scene, he did not see any trouble.
        Assuming the above statement was improperly admitted, appellant does not demonstrate how the statement prejudiced his case. Rule 81(b)(2) of the Texas Rules of Appellate Procedure provides:
 
 
                 Criminal Cases. If the appellate record in a criminal case reveals error in the proceedings below, the appellate court shall reverse the judgment under review, unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment.
TEX. R. APP. P. 81(b)(2). Because of the other evidence against appellant, we hold that beyond a reasonable doubt the error, if any, made no contribution to appellant's conviction or punishment. Appellant's sixth point of error is overruled.
        The judgment of the trial court is affirmed.
 
                                                          
                                                          JOE BURNETT
                                                          JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
 
88-00910.F
 
 
File Date[01-02-89]
File Name[880910]