Fidel Serrano Menjivar v. State
11-13-00378-CR
| Tex. App. | Nov 12, 2015Background
- Appellant Fidel Serrano Menjivar was convicted by a jury of misdemeanor resisting arrest, search, or transportation under Tex. Penal Code § 38.03 and sentenced to 180 days (suspended) and one year community supervision.
- Police received a dispatch about a group and a person pointing a firearm; Officer Standage (in uniform) arrived and saw Appellant moving toward a vehicle while other individuals were nearby.
- Standage told Appellant to come over; Appellant continued toward the vehicle and began opening the door; Standage grabbed him fearing a gun might be in the car. A physical struggle ensued and both fell to the ground; Appellant flailed his arms and could not be handcuffed until another officer arrived.
- A BB gun was later shown to officers by a bystander (Arturo Montoya); Standage did not find a gun on Appellant. Standage smelled alcohol on Appellant while on the ground and later arrested him for public intoxication (charge later dropped).
- Appellant claimed he did not understand he was being arrested because he is a Spanish speaker and the officers did not obtain an interpreter. Witnesses disputed whether the gun had been located prior to the struggle.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Menjivar) | Held |
|---|---|---|---|
| Sufficiency of the evidence to prove resisting by intentionally preventing an officer from effecting an arrest, search, or transportation | Evidence showed Appellant used force (pulled away, flailed) against Officer Standage while Standage, a known officer in uniform, was attempting to detain/search him | Appellant lacked the requisite intent because he did not know he was being arrested and did not understand officers’ commands (language barrier) | Affirmed: a rational jury could find beyond a reasonable doubt Appellant intentionally prevented/obstructed a known peace officer from effecting an arrest, search, or transportation by using force |
| Whether officer was "effecting an arrest" at the time (preexisting intent required) | State contends §38.03 also criminalizes preventing effecting a search or transportation, not only an arrest; jury could find Standage was effecting a search | Appellant argues Standage only decided to arrest for public intoxication after the struggle began, so no preexisting arrest intent | Court: even if no preexisting arrest intent, sufficient evidence supported that Standage was effecting a search and Appellant obstructed that search; jury credibility findings supported conviction |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (1979) (establishes standard for sufficiency of evidence review)
- Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (applies Jackson standard in Texas criminal appeals)
- Latham v. State, 128 S.W.3d 325 (Tex. App.—Tyler 2004) (officer must have preexisting intent and take action to be "effecting an arrest")
- Jackson v. State, 993 S.W.2d 162 (Tex. App.—Eastland 1999) (interference with the process of conducting a search constitutes obstructing an officer effecting a search)
- Pumphrey v. State, 245 S.W.3d 85 (Tex. App.—Texarkana 2008) (struggling, twisting, or pulling against an officer is evidence of using force against the officer)