Petty, Timothy Earl
PD-0256-15
| Tex. | Mar 10, 2015Background
- Tim Petty pled guilty to aggravated assault with a deadly weapon and received five years deferred adjudication community supervision.
- State filed motion to adjudicate alleging new offenses: criminal trespass, theft, simple assault, and resisting arrest; Petty pled not true to each count.
- Trial court found only the resisting-arrest allegation true, revoked community supervision, and sentenced Petty to seven years' confinement.
- At the revocation hearing, two officers (Cunningham and Brookshire) described Petty pulling away while officers attempted handcuffing and Brookshire deploying OC spray; one officer denied Petty used assaultive force.
- Neighbor-witness Daniel Pinion testified Petty shifted his weight and threw an elbow into an officer’s chest; Pinion’s credibility was questioned (medication use, prior complaints against Petty, inconsistent observation testimony).
- Petty argued the sole probative evidence of force was Pinion’s disputed testimony and thus did not meet the preponderance standard (as interpreted in Dobbs) to support revocation.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Petty) | Held |
|---|---|---|---|
| Whether evidence was legally sufficient to adjudicate guilt based on resisting arrest | Officers and witness testimony show Petty used force or resisted arrest, satisfying preponderance standard | Only a single, unreliable witness (Pinion) testified to force; officers’ testimony was inconsistent and did not prove force toward them | Court affirmed: greater weight of credible evidence supported finding Petty resisted arrest |
| Whether conduct met Dobbs definition of "using force against" an officer | Pinion’s description of an elbow and officers’ accounts of pulling away/forceful resistance meet Dobbs’ ordinary-meaning standard for force directed at an officer | Petty contends movements were away from officers and no directed physical aggression occurred; Dobbs requires force directed at or toward officer | Court held Pinion’s testimony (alone or with other evidence of pulling away) met Dobbs’ definition |
| Credibility and weight of witness testimony in revocation proceedings | Trial court as fact-finder may accept or reject witness testimony; inconsistencies go to weight not sufficiency | Petty argues inconsistencies rendered evidence insufficient as a matter of law | Court deferred to trial court’s credibility determinations and affirmed |
| Standard of review for community-supervision adjudication | State: abuse-of-discretion review, examine evidence in light most favorable to trial court | Petty: factual insufficiency where preponderance not shown warrants reversal | Held abuse-of-discretion standard applies; greater weight of credible evidence standard satisfied |
Key Cases Cited
- Dobbs v. State, 434 S.W.3d 166 (Tex. Crim. App. 2014) (defines "using force against" a peace officer as violence or physical aggression toward or in opposition to the officer)
- Rickels v. State, 202 S.W.3d 759 (Tex. Crim. App. 2006) (standard that revocation must be supported by greater weight of credible evidence creating reasonable belief defendant violated probation)
- Dansby v. State, 398 S.W.3d 233 (Tex. Crim. App. 2013) (discusses trial court’s role in assessing witness credibility in revocation context)
- Pumphrey v. State, 245 S.W.3d 85 (Tex. App.—Texarkana 2008) (twisting, squirming, or forcefully pulling away can constitute resisting arrest)
- Sanchez v. State, 603 S.W.2d 869 (Tex. Crim. App. 1980) (articulates preponderance and greater-weight standards for revocation)