Marvin Neal Kelly, III v. The State of Texas--Appeal from County Court at Law No 4 of Montgomery County

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-04-202 CR
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MARVIN NEAL KELLY III, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 4
Montgomery County, Texas
Trial Court Cause No. 03-182120-04
MEMORANDUM OPINION

A jury convicted appellant, Marvin Neal Kelly III, of the misdemeanor offense of resisting arrest. Tex. Pen Code Ann. 38.03 (Vernon 2003). The trial court assessed punishment at a $1000 fine. Kelly filed this appeal.

In his sole issue, Kelly contends the evidence is legally insufficient to support the verdict. In reviewing an issue of legal sufficiency, an appellate court views the evidence in the light most favorable to the verdict to determine whether a rational fact finder could have found each element of the offense beyond a reasonable doubt. Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003); Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). Section 38.03(a) of the Texas Penal Code provides as follows:

A person commits an offense if he intentionally prevents or obstructs a person he knows is a peace officer . . . 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(a) (Vernon 2003). Section 9.31(c) of the Texas Penal Code provides:

(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. Pen. Code Ann. 9.31(c) (Vernon 2003).

Deputy Jeremy Wooldridge and Deputy Tony Messina were dispatched to a residence where family violence was in progress. Both deputies were dressed in uniforms and driving marked patrol units and they arrived at the residence at about the same time. Two uniformed Splendora officers arrived later.

When Deputy Wooldridge arrived at the residence, he met complainant, who told him she had been in an argument with Kelly, and Kelly had pushed her down. According to Deputy Messina, complainant had called 911 from the neighbor's house across the street. Deputy Messina testified that he believed complainant was Kelly's common law spouse. Deputy Wooldridge knocked on the door and identified himself as a deputy sheriff. Deputy Wooldridge testified that his primary purpose in approaching the residence was to place Kelly under arrest for "[a]ssault family violence."

Deputy Wooldridge told Kelly they needed to conduct an investigation and he needed to come out of the house. Deputy Messina testified that he told Kelly they were there to investigate a family violence call, and they needed him to come outside to talk with them. Kelly responded by yelling, cursing, and taunting the officers. Both Deputy Wooldridge and Deputy Messina testified that Kelly said he would not come out because he would be arrested and jailed for assault. Deputy Wooldridge testified that they could not leave without arresting Kelly because complainant and her small child had no place to go and no transportation. Complainant's car was at the residence, and all of the car's windows, headlights, and taillights had been smashed.

Deputy Messina testified that Kelly was intoxicated, loud, and belligerent. Kelly moved through different rooms of the house, and he opened windows and talked to the officers. Deputy Wooldridge made visual contact with Kelly through an open window, and he continued explaining to Kelly that he was required to investigate. When Kelly reached his arm outside the window, Deputy Wooldridge and the other officers attempted to restrain and arrest Kelly by grabbing his arm. Kelly struck Deputy Wooldridge on the head with a closed fist, and one of the Splendora officers then sprayed Kelly with pepper spray. Deputy Wooldridge testified that the room was dark, so the officers could not see inside. Kelly kept reaching down with one arm inside the room, and the officers did not know whether he had any weapons.

Kelly was able to pull away from the officers, and he slammed the window on the hand of one of the Splendora officers. Deputy Wooldridge attempted to enter the house through an unlocked window, but Kelly slammed the window shut. Deputy Wooldridge then kicked the door down, and all four officers entered the residence. After a short struggle, Deputy Wooldridge handcuffed and arrested Kelly with Deputy Messina's assistance. According to Deputy Wooldridge, Kelly refused to obey verbal commands during the struggle.

Viewing the record in the light most favorable to the verdict, a rational jury could have concluded beyond a reasonable doubt that Kelly used force to intentionally prevent or obstruct persons he knew were peace officers from effecting an arrest. Tex. Pen. Code Ann. 38.03(a) (Vernon 2003). A rational jury could also have concluded beyond a reasonable doubt that the officers did not use greater force than necessary, and Kelly was not justified in resisting arrest. Tex. Pen. Code Ann. 9.31(c) (Vernon 2003). The evidence is legally sufficient to support the verdict. Kelly's sole issue is overruled, and the judgment of the trial court is affirmed.

AFFIRMED.

DAVID GAULTNEY

Justice

 

Submitted on April 4, 2005

Opinion Delivered April 13, 2005

Do Not Publish

Before McKeithen, C.J., Gaultney and Horton, JJ.