Donny Joe Curry v. State ( 2015 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-14-00139-CR
DONNY JOE CURRY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 1
Hunt County, Texas
Trial Court No. CR1301508
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
When Donny Joe Curry was subjected to a traffic stop by Commerce Police Officer
Samantha Manrique, Curry had a consistent theme for why he refused to cooperate or provide
more than his first name, why his vehicle had no rear lights, and why the vehicle displayed only
homemade items in place of a proper license plate, registration sticker, and inspection sticker.
Curry claimed to be sovereign and, therefore, not subject to the law or any governmental authority.
Manrique stopped Curry’s blue Buick LeSabre after she noticed that the vehicle was being
driven poorly and had no rear lights, proper license plate, or inspection sticker. Curry’s refusal to
exit his vehicle after numerous directions to do so led to several tasings and a struggle to place him
in handcuffs. Following a bench trial, Curry was convicted of resisting arrest, sentenced to
confinement in the Hunt County Jail for 275 days, and ordered to pay a $250.00 fine and court
costs.
On appeal, Curry challenges the legal sufficiency of the evidence supporting his
conviction. Because we find the evidence sufficient to establish the offense of resisting arrest, we
affirm the trial court’s judgment.
In evaluating legal sufficiency of the evidence, we review all the evidence in the light most
favorable to the verdict to determine whether any rational fact-finder could have found beyond a
reasonable doubt the offense of resisting arrest. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.
App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d
859, 863 (Tex. App.—Texarkana 2010, pet. ref’d) (citing Clayton v. State, 235 S.W.3d 772, 778
(Tex. Crim. App. 2007)). Legal sufficiency of the evidence is measured by the elements of the
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offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240
(Tex. Crim. App. 1997). The hypothetically correct jury charge “sets out the law, is authorized by
the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict
the State’s theories of liability, and adequately describes the particular offense for which the
defendant was tried.” Id. By information, the State alleged and was required to prove that
(1) Curry (2) intentionally (3) prevented or obstructed backup officer Mike Pehl, (4) a person Curry
knew was a police officer, (5) from effecting his arrest, search, or transportation (6) by use of force
against Pehl. See TEX. PENAL CODE ANN. § 38.03(a) (West 2011).
Manrique testified that Curry was asked, but refused, to provide her with his last name,
driver’s license, and proof of insurance.1 As demonstrated by the video recording of his arrest,
Curry’s excuse for his refusal to provide the requested information was that he was a “free man.”
Based on Curry’s response, Manrique believed that Curry belonged to the sovereign citizen
movement. As explained by Pehl, sovereign citizens “believe in a government . . . that derives its
strength and its rights from . . . common law, which is totally different from . . . the law of the land
1
In companion cases 06-14-00139-CR through 06-14-00142-CR, Curry appeals from convictions all prosecuted
against Curry as a result of the traffic stop, each resulting in an appeal currently pending before this Court. Curry was
charged with resisting arrest (our cause number 06-14-00139-CR), failure to maintain proof of financial responsibility
(our cause number 06-14-00140-CR), failure to display/no motor vehicle inspection (our cause number 06-14-00141-
CR), and failure to identify (our cause number 06-14-00142-CR). After a bench trial, he was found guilty on all
charges. For the offense of resisting arrest, the trial court sentenced Curry to 275 days’ confinement, assessed a
$250.00 fine, ordered Curry to pay court costs, and gave him credit for eighty-two days of time served. For each of
the remaining three offenses, the court fined him $250.00, gave him credit for eighty-two days of time served, which
fully satisfied the fine, and assessed him court costs, but in the final judgments, there are handwritten notations that
he was also sentenced to 275 days’ confinement for each of the charges. Three of the appeals are being affirmed this
day—two of which are being modified to delete the 275-day jail sentence—but, because no evidence shows that Curry
was under arrest at any time before he failed to identify, the conviction for failure to identify is being reversed.
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as established by the United States Constitution.” Because Manrique’s training had taught her that
sovereign citizens could have a propensity for violence, she called Pehl and Steve Scott for backup.
Pehl approached Curry on the driver’s side of his vehicle as Scott approached the passenger
side. Although he was in plain clothes, Pehl displayed his badge and identified himself as a police
officer. Pehl instructed Curry to step out of the vehicle, but Curry refused. Pehl testified that, as
he opened the driver’s side door, Curry reached down for a briefcase and said, “I want to show
you something.”2 Believing that Curry was reaching for a gun, Pehl drew his firearm and ordered
Curry out of the car. Both Pehl’s testimony and the video recording of the arrest demonstrated
that Pehl pulled on Curry’s arm and exerted physical pressure on Curry to induce him to exit the
vehicle. After Curry’s continued resistance, Pehl tased him.
Despite Pehl’s tasings, Curry “remain[ed] locked up on the steering wheel.” Manrique
testified that Pehl and Scott had to wrestle with Curry because he was “holding on to the steering
wheel” and refused to exit the vehicle. The videotape of Curry’s arrest demonstrated the struggle.
Pehl testified that, once Curry was forcefully ejected from the vehicle, he grabbed Curry in the
upper chest because his arms were “flailing out to his side.” The videotape showed that Manrique
cuffed one of Curry’s wrists, but that Curry continued to struggle by pulling his arms apart as Pehl
and Scott attempted to push his arms together so that his other wrist could be cuffed. Together,
Pehl and Scott were finally able to secure Curry in handcuffs and place him in a patrol car.
Curry, who represented himself at trial, described his actions as “passive resistance.” The
trial court disagreed and found Curry guilty of resisting arrest.
2
The briefcase did not contain a weapon.
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Curry argues that the evidence at trial is insufficient to meet the elements of the offense
because (1) he did not know he was under arrest, (2) he did not intentionally prevent or obstruct
Pehl from effecting an arrest, and (3) the “passive resistance” he employed is insufficient to show
use of force.
First, there is sufficient evidence that Pehl was effecting Curry’s arrest. Curry complains
that no one told him he was under arrest for the various traffic infractions he had committed.
However, an announcement from a police officer that he is attempting to make an arrest is not a
prerequisite to this crime. “Although it is necessary for the officer to have a pre-existing intent to
arrest together with some action taken pursuant to that intent, the process is not dependent upon
the officer verbalizing his intention to arrest.” Latham v. State, 128 S.W.3d 325, 329 (Tex. App.—
Tyler 2004, no pet.) (citing White v. State, 601 S.W.2d 364, 366 (Tex. Crim. App. [Panel Op.]
1980)). “[W]hether a person is under arrest is determined by asking if a reasonable person would
have believed he was not free to leave in light of all the circumstances surrounding the incident.”
Id.
Here, Manrique testified that Curry committed arrestable offenses before Pehl’s arrival.
Curry refused, then vigorously resisted, Pehl’s efforts to get him out of the car. After a struggle
with Pehl and Scott, in which they attempted to bring Curry under control, Manrique was able to
handcuff one of Curry’s wrists. “From the moment the peace officer begins his efforts to gain
control or physical restraint over the individual until the individual is restrained or controlled, the
officer is considered to be ‘effecting an arrest.’” Id. (citing Bruno v. State, 922 S.W.2d 292, 294
(Tex. App.—Amarillo 1996, no pet.)). We find that, at the very least, a reasonable person would
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not have believed that he was free to leave after his first wrist was handcuffed. 3 By this point, it
was clear that Pehl was effecting Curry’s arrest.
Next, the evidence demonstrates that Curry used force against an officer. Even as Curry
had handcuffs dangling from one wrist, he continued to resist Pehl’s and Scott’s efforts to secure
him by spreading his arms apart so that his other wrist could not be handcuffed. Curry contends
that his act of passive resistance does not equate to a use of force. “In applying section 38.03(a)
of the Texas Penal Code, the essential inquiry is whether the actor has forcibly interfered with a
peace officer’s ‘arrest’ transaction or process to bring the actor under control.” Id. (citing Schrader
v. State, 753 S.W.2d 733, 735 (Tex. App.—Austin 1988, pet. ref’d)).
We have previously addressed and rejected a virtually identical argument regarding passive
resistance by holding that a defendant’s forceful pulling away from an officer’s grasp is sufficient
to establish the use of force against the officer. Pumphrey v. State, 245 S.W.3d 85, 91 (Tex. App.—
Texarkana 2008, pet. ref’d). In Pumphrey, we reasoned,
[T]he statute [] defines “resisting” arrest by using “force against” an officer or
another. The ordinary meaning of “resist” does not require that the resistance be
directed toward the person or force being resisted. To “resist” is to “exert oneself
so as to counteract or defeat.” MERRIAM–WEBSTER’S COLLEGIATE
DICTIONARY 1060 (11th ed. 2006). Interpreting “force against” to require that
force be directed toward the officer contradicts the ordinary meaning of the word
“resist.” In the absence of a statutory definition to the contrary, we believe the
proper understanding of “against” in the context of “resisting arrest” allows for the
use of force in opposition to, but not necessarily directed toward, the officer who is
attempting to make an arrest. We conclude that “against,” as used by Section 38.03
of the Texas Penal Code, does not require force directed at or toward the officer,
but also is met with any force exerted in opposition to, but away from, the officer,
such as a simple pulling away.
“It is no defense to prosecution under [the resisting arrest statute] that the arrest or search was unlawful.” TEX. PENAL
3
CODE ANN. § 38.03(b) (West 2011).
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Id. Likewise, we find that, by continuing to struggle with officers as they attempted to handcuff
him, Curry interfered with a “peace officer’s ‘arrest’ transaction or process to bring the actor under
control.” Latham, 128 S.W.3d at 329.
Curry further argues, “It is just as rational, if not more rational, that Appellant’s physical
actions were the result of the electrocution he suffered at the hands of Officer Pehl’s Taser.” Thus,
he concludes that the evidence is insufficient to show that he acted with the intent to prevent or
obstruct Pehl from arresting him. We disagree.
Intent can be inferred from such circumstantial evidence as the person’s acts and conduct
because “[o]ne’s acts are generally reliable circumstantial evidence of one’s intent.” Lay v. State,
359 S.W.3d 291, 295 (Tex. App.—Texarkana 2012, no pet.) (quoting Laster v. State, 275 S.W.3d
512, 524 (Tex. Crim. App. 2009)). While Curry argues that his acts of resistance could have been
the result of being tased, he testified at trial that his “arms were just like [a] rag doll” and that his
body was “limp.” Contrary to that, Pehl’s and Scott’s efforts to secure both of Curry’s wrists in
handcuffs are depicted in the videotape of his arrest.
The evidence demonstrated that Curry, through use of force, tried to keep Pehl and Scott
from handcuffing him. This act of resistance came after (1) Curry had refused Pehl’s commands
to exit the vehicle, (2) Curry was tased several times, and (3) Curry was wrestled out of the vehicle.
As the fact-finder, the trial court was free to determine that Curry’s act of spreading his arms apart
to prevent being handcuffed, which obstructed Pehl from effecting an arrest, was intentional.
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Because we find that Curry’s conviction is supported by legally sufficient evidence, we
affirm the trial court’s judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: April 8, 2015
Date Decided: April 24, 2015
Do Not Publish
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