David Polys v. The State of Texas--Appeal from County Court at Law No 2 of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-01-396-CR

DAVID POLYS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Court at Law No. 2

McLennan County, Texas

Trial Court # 2000-3798-CR2

O P I N I O N

A jury convicted David Polys of resisting arrest. The trial court sentenced him to 90 days in jail. On appeal, Polys contends the evidence was factually insufficient to support his conviction. We affirm the trial court s judgment.

A person commits the offense of resisting 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. Pen. Code Ann. 38.03(a) (Vernon 1994). Polys was charged with intentionally preventing and obstructing Officer Scott Holt or Officer Donald Rep from effecting Polys s arrest by using force against the officers. The force alleged was pulling away or striking the officers. Specifically, Polys contends on appeal that the State s proof of force was factually insufficient to support the conviction.

Evidence to support a criminal conviction may be factually insufficient in two distinct ways. Goodman v. State, 66 S.W.3d 283, 285 (Tex. Crim. App. 2001). First, evidence is factually insufficient when the only evidence presented on the particular element supports the inference that the fact is true, but that evidence is simply too weak by itself to support a rational finding. Id. Second, the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see also Cain v. State, 958 S.W.2d 404 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996). The jury is the judge of the credibility of the witnesses and may "believe all, some, or none of the testimony." Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

Polys cites us to our sister court in Corpus Christi in support of his proposition that the evidence was insufficient to show force used against the officers. See Leos v. State, 888 S.W.2d 180 (Tex. App. Corpus Christi 1994, no writ). However, we have declined to follow Leos and have held that pulling one s arm in an attempt to shake off an officer s detaining grip could amount to force against the officer. Bryant v. State, 923 S.W.2d 199, 207 (Tex. App. Waco 1996, pet. ref d). See also Hopper v. State, No. 08-01-326-CR, 2002 Tex. App. Lexis 4389, *9 (El Paso June 20, 2002, no pet. h.).

Officers Rep and Holt asserted Polys was passed out in his vehicle in the middle of a curve on Stewart Drive in Waco, Texas. Polys smelled of an alcoholic beverage and the officers spotted a half-empty bottle of Vodka on the passenger seat beside Polys. After attempting to have Polys voluntarily remove himself from his vehicle, the officers verbally placed him under arrest and pulled him out. They placed him against the rear of a patrol car and attempted to handcuff him. Officer Rep testified that Polys was getting more aggressive and began to forcefully pull his hands away. Officer Holt testified that as he was attempting to push Polys over the patrol car to secure him in handcuffs, Polys was pushing back in resistance. Because Polys was struggling, the officers decided to take Polys to the ground. Polys continued to struggle on the ground until he was handcuffed. A videotape of the arrest showed the negotiation between Holt and Polys and also showed Polys s struggle with the officers to avoid being placed in handcuffs.

Polys disputed the officers version of the arrest. He contended that, because he had one leg, he was only trying to keep his balance and that anything done to the officers was involuntary. He admitted to moving around while the officers attempted to handcuff him. But, he denied pulling away from one of the officers. Polys also denied he prevented the officers from arresting him, but admitted that he may have impeded them to a certain extent.

After reviewing the record, the evidence is not too weak by itself to support the State s allegation of using force by pulling away from one of the officers, nor is it greatly outweighed by contrary proof. Polys s issue is overruled.

The judgment of the trial court is affirmed.

TOM GRAY

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed August 14, 2002

Do not publish

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