Opinion issued May 31, 2011

In The

Court of Appeals

For The

First District of Texas

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NOS. 01-09-00484-CR

          01-09-00485-CR

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James Aaron Shankle, Appellant

V.

The State of Texas, Appellee

On Appeal from the 10th District Court

Galveston County, Texas

MEMORANDUM OPINION

          Appellant, James Aaron Shankle, was indicted in two separate cases for the felony offense of assault of a public servant.  After appellant waived a jury trial, the trial court found appellant not guilty of the assault charges.  Instead, the trial court found appellant guilty in each case of the lesser-included offense of resisting arrest, see Tex. Penal Code Ann. § 38.03 (Vernon 2003), and assessed punishment at two days’ confinement in the county jail, with credit for time served.  In two related points of error, appellant contends the evidence is legally and factually insufficient to support his conviction.  We affirm.

BACKGROUND

          The facts in the light most favorable to the verdict are as follows:  On February 19, 2008, James Guillory went to the League City Police Department for assistance with obtaining custody of his children from his ex-wife, Michaelle Shankle.  Guillory showed the police officers a visitation order, which was later determined to have been vacated.[1]  Officer S. Blair looked up the address referenced in the order and noted that the police had been to that location six times in the past month.  After speaking with the District Attorney’s office, Blair accompanied Guillory to Shankle’s home.

          Blair had Guillory stay outside while he went up and knocked on the door.  Shankle answered, and Blair asked her “what was going on with her ex-husband and her kids.”  Shankle replied that she did not feel like her kids were safe with Guillory and that she was not going to allow them to go with him.[2]  Blair told Shankle that if she felt that the children were unsafe, she should go back to the Court to have the visitation modified. Blair told Shankle that he had been advised by the District Attorney to either have the children go with Guillory or arrest Shankle for interference with child custody.  Shankle held out her hand and replied, “Just take me to jail, but you’re still not giving Mr. Guillory the kids.”

          Blair was about to arrest Shankle, when appellant, her husband, stepped between them and said, “You need to get off my property, and you’re not taking anyone to jail.”  Blair explained that Shankle was committing a felony in his presence and that she was going to jail.  Appellant replied, “She’s not going anywhere.”  Appellant then tried to close the door, but Blair put his foot in to keep the door from closing.  Blair also called his sergeant for assistance.  While waiting for assistance, Blair explained to appellant and Shankle that until the custody order was changed they needed to comply with it.  Blair testified that no one ever claimed that the order was invalid or that it was not Guillory’s visitation day.

          In response to Blair’s call, Sergeant Hera arrived in about five minutes.  When he arrived, Hera saw Blair standing at the doorway with his foot holding it open and appellant standing on the other side holding a small child.  Hera moved to step through the doorway and arrest Shankle, when appellant pushed him in the chest.  Hera testified that before appellant pushed him, “I hadn’t laid a hand on him.” Hera also told appellant to put the child down.  Hera testified that at this point his focus shifted from arresting Shankle to arresting appellant for interference.  Hera repeatedly told appellant to put the child down, and when Hera moved to grab appellant’s arm, appellant began to shake the baby back and forth.  Hera tried to take the baby by the waist and remove him from the situation, but appellant continued moving the baby from side to side, so Hera immediately let go of the child.  Shankle finally stepped forward, grabbed the baby from appellant, and fled further into the house. 

          Once the child was removed from the situation, Hera attempted to place appellant in an armbar so that he could handcuff him, and appellant responded by swinging his fists and throwing punches, one of which hit Hera in the back of the head. Blair then tackled appellant and a fight ensued.  When appellant was finally subdued, both officers had been injured.

SUFFICIENCY OF THE EVIDENCE

          In points of error one and two, appellant contends the evidence is legally and factually insufficient to convict him of resisting arrest “because any use of force against the officers by appellant was justified” under section 9.31 of the Texas Penal Code.  Essentially, appellant argues that the evidence is insufficient to support the trial court’s rejection of his self-defense claim.

This Court reviews sufficiency-of-the-evidence challenges applying the same standard of review, regardless of whether an appellant presents the challenge as a legal or a factual sufficiency challenge. See Ervin v. State, 331 S.W.3d 49, 52–55 (Tex. App.—Houston [1st Dist.] Nov. 10, 2010, pet. ref’d) (construing majority holding of Brooks v. State, 323 S.W.3d 893, 912, 924–28 (Tex. Crim. App. 2010)). This standard of review is the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.C t. 2781, 2789 (1979). See id. Pursuant to this standard, evidence is insufficient to support a conviction if, considering all the record evidence in the light most favorable to the verdict, no rational fact finder could have found that each essential element of the charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071 (1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We can hold evidence to be insufficient under the Jackson standard in two circumstances: (1) the record contains no evidence, or merely a “modicum” of evidence, probative of an element of the offense, or (2) the evidence conclusively establishes a reasonable doubt. See Jackson, 443 U.S. at 314, 318 n.11, 320, 99 S. Ct. at 2786, 2789 n.11, 2789; see also Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750.

The sufficiency-of-the-evidence standard gives full play to the responsibility of the factfinder to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). An appellate court presumes that the fact finder resolved any conflicts in the evidence in favor of the verdict and defers to that resolution, provided that the resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. In viewing the record, direct and circumstantial evidence are treated equally; circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Clayton, 235 S.W.3d at 778. Finally, the “cumulative force” of all the circumstantial evidence can be sufficient for a jury to find the accused guilty beyond a reasonable doubt. See Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006).

When, as here, a defendant asserts a claim of self-defense, the State has the ultimate burden of persuasion. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). The burden of persuasion does not require the production of evidence; it requires only that the State prove its case beyond a reasonable doubt. Id. at 594. When a factfinder finds a defendant guilty, there is an implicit finding against the defensive theory. Id. When reviewing the sufficiency of the evidence concerning the factfinder’s rejection of self-defense, we look to whether any rational factfinder could have found against the defendant on the self-defense issue beyond a reasonable doubt. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991); Hernandez v. State, 309 S.W.3d 661, 665 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d).

Appellant argues that his use of force against the police officers was justified because he was merely responding to being “tackled” by the officers as he attempted to hand his infant son to his wife.

Article 38.03 of the Texas Penal Code defines the offense of resisting arrest as follows:

(a) A person commits an offense if he intentionally prevents or obstructs a person he knows is a peace officer . . . from effecting an arrest . . . of the actor or another by using force against the peace officer or another.

(b) It is no defense to prosecution under this section that the arrest or search was unlawful.

Tex. Penal Code Ann. § 38.03(a),(b) (Vernon 2003).

The penal code also provides in part: “[A] person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force.” Tex. Penal Code Ann. § 9.31(a) (Vernon Supp. 2010). However, “[t]he use of force against another is not justified: to resist an arrest . . . that the actor knows is being made by a peace officer . . . even though the arrest or search is unlawful, unless the resistance is justified.” Id. § 9.31(b)(2).  The use of force to resist an arrest or search is justified “if, before the actor offers any resistance, the peace officer . . . uses or attempts to use greater force than necessary to make an arrest or search.” Id. § 9.31(c)(1).  Thus, appellant had to produce evidence that the force he used in resisting arrest occurred after the officers had used greater force than necessary. See Jackson v. State, No. 05-96-01428-CR, 1998 WL 89587, *4 (Tex. App.—Dallas March 4, 1998, no pet.). The issue we must decide then is whether there is sufficient evidence that appellant “offered any resistance,” i.e., used force against the officers first.

          Appellant points out that he, Shankle, and Guillory all testified that the physical encounter between appellant and the officers was initiated by Hera when he “tackled” appellant as appellant turned to hand his son to Shankle.  In contrast, Hera and Blair testified that the physical encounter began when appellant shoved Hera as Hera attempted to enter the house and arrest Shankle.  The trial court, as finder of fact, was entitled to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.

          Because a rational factfinder could have found against appellant on his self-defense issue beyond a reasonable doubt, we overrule points of error one and two.  See Saxton, 804 S.W.2d at 914.  

CONCLUSION

          We affirm the judgment of the trial court.

                                                                   Sherry Radack

                                                                   Chief Justice

Panel consists of Chief Justice Radack and Justices Sharp and Brown.

Do not publish.  Tex. R. App. P. 47.2(b).