*1 statutory words ac- generally we construe common mean-
cording plain to their such construction leads to
ing unless result).
absurd county court therefore hold that the
We erroneously determined that
at law of Government
sixty-day timing provision 411.180(b) mandatory section that, jurisdictional because
justice hearing court did not hold a on
Department’s petition revocation within
sixty days request of Shaikh’s for a hear-
ing, subject jurisdiction it lacked matter
over the case. Department’s sustain the sole issue.
We
Conclusion judgment county reverse of the
We
court at law and remand the case for a Department’s on the revoca-
trial de novo petition pursuant
tion Government Code 411.180(e).
section DOBBS, Appellant
Atha Albert Texas, Appellee.
The STATE of
No. 01-11-01126-CR. Texas, Appeals
Court (1st Dist.).
Houston
Feb. 2013.
Discretionary Review Granted
June *2 III, TX,
Forrest L. Sanderson Bastrop, Appellant. for Parham, Brenham, TX, William E. Ste- phen Conroe, TX, Christopher Taylor, for State. JENNINGS,
Panel consists of Justices HIGLEY, and SHARP.
OPINION HIGLEY, LAURA CARTER Justice. juryA found Atha Albert guilty Dobbs of the offense of resisting arrest.1 guilty To reach the finding, the jury found that had used a dead- firearm, ly weapon, namely, a to resist 1. See Tex. Penal Code Ann. 38.03(a) (Vernon 2011). thereby elevating the offense to a aimed appellant. it at Deputy Kokemoor
third-degree felony.2 yelled assessed at appellant, him instructing put appellant’s punishment years pris- at six gun. down the Appellant did not comply. $8,000 on and an fíne. *3 Appellant to the door. walked He was appeal, appellant On raises one issue. pointing the gun at his own temple. Depu- He contends that the evidence was not ty Kokemoor could not hear what appel- support judgment sufficient to of con- saying, lant was but it appeared to the viction. Because we hold that evi- officer that appellant was mouthing words sufficient, dence was we affirm. to the effect that he was intending to kill Deputy himself. kept gun Kokemoor his Background Summary appellant trained on but did not fire his wife, Dawn, Appellant with his lived and weapon. daughters, Sep- her S.M. and KM. On Appellant then turned around and began 18, 2010, 16-year-old
tember
S.M. told
walking to the interior of the house. Dep-
sexually
Dawn that
had been
uty Kokemoor
gun
lowered his
and pulled
abusing
years.
her for several
Dawn and
Deputy
out his taser.
Kokemoor went into
daughters
day,
her two
moved out the next
Appellant
house.
turned and looked at
leaving appellant alone at the house.
Deputy Kokemoor. When appellant began
Washington County
Dawn contacted the
room,
living
run into the
Deputy Kok-
Department
SherrifPs
reported
and
S.M.’s emoor shot appellant with a taser.
allegations of sexual abuse. A warrant
Appellant fell to the floor on to top of his
appellant’s
was issued for
arrest for the
gun. Deputy Kokemoor
appel-
instructed
offense of sexual
assault
a child. Dawn
put
lant
his hands behind his back.
told
sheriffs office that she believed
Because appellant did not comply, Deputy
appellant may resist arrest.
Kokemoor pulled
trigger
on the taser a
deputies
Five sherifPs
dispatched
were
Deputy
second time.
Kokemoor kicked
Appel-
house to arrest him.
appellant’s gun away from him. The offi-
looking
lant was
out his kitchen window
cer discovered that the
was loaded. It
when he saw the deputies approaching the
had a bullet in the chamber.
house. He went to his
cabinet and
The officers took appellant
custody.
into
pistol.
dep-
retrieved
loaded
Two of the
Appellant
charged
with
felony
three
house,
uties went to the back of the
two to
(1)
offenses:
continuous sexual abuse of a
side,
and
Deputy
one
K. Kok-
(2)
age
years;
child under the
of 14
aggra-
emoor,
door,
went to the front
which led
(3)
assault;
vated sexual
resisting ar-
into the kitchen.
respect
rest. With
to the resisting arrest
door,
got
When he
Deputy Kok-
charge,
alleged
State
emoor could see inside the house. He saw
had
deadly weapon, namely,
used a
a fire-
appellant walking straight
toward the
arm,
in resisting
making the of-
Appellant
door.
had a
hand.
fense a third-degree felony.
One of the other officers had also seen the
pistol
yelled,
depu-
“Gun!” Each of the
The State offered a number of witnesses
pulled
trial,
Dawn, S.M.,
ties
out his service weapon and
including
at
38.03(d);
(Ver-
offense).
§
2. See
third-degree felony
id.
see also id.
12.34
2011) (defining punishment
range
non
for
Appellant testified in his own
Kokemoor.
Williams
defense.
(Tex.Crim.App.2007). We can hold evi-
dence to be insufficient under the Jackson
jury
The
was unable to reach a unani-
(1)
standard in two circumstances:
charged
verdict on the
offenses of
mous
evidence,
record contains no
or merely a
abuse of a child and
continuous sexual
evidence, probative
“modicum” of
of an
assault. The trial court
aggravated sexual
(2)
offense,
element of the
the evidence
respect
a mistrial with
to those
declared
conclusively establishes
reasonable
charges.
two
Jackson,
doubt. See
443 U.S. at
appellant guilty
find
of the
did
11, 320,
n.
*4
S.Ct.
n.
felony offense of
third-degree
resisting ar-
2789;
Laster,
518;
also
see
275 S.W.3d at
Following
punishment phase,
rest.
the
the
Williams,
Sufficiency of the Evidence evidence, testimony, weigh to the and issue, appellant In one contends that the to dráw reasonable inferences from basic legally evidence introduced trial is insuf- at Jackson, facts to ultimate facts. See 443 ficient to support conviction for the 319, 2789; at 99 Clayton U.S. S.Ct. at v. resisting offense of State, 772, 235 S.W.3d (Tex.Crim.App. 778 2007). An appellate presumes court A. of Review Standard any fact finder resolved conflicts in the sufficiency-of-the-ev This Court reviews evidence in favor of the verdict and defers challenges applying idence the same stan resolution, to that provided that the reso review, regardless dard of of whether an Jackson, lution is rational. See 443 atU.S. appellant presents challenge a legal as 326, 99 at 2793. S.Ct. sufficiency or a factual Er challenge. See record, In viewing the direct and State, (Tex. 49, vin v. 53-55 equal circumstantial evidence are treated ref'd)
App.-Houston
pet.
[1st Dist.]
ly;
probative
circumstantial evidence is as
(construing majority holding of Brooks v.
as direct evidence in establishing
guilt
State, 323
(Tex.Crim.App.
S.W.3d 893
actor,
of an
and circumstantial evidence
2010)). This standard of review is the
alone can be sufficient
guilt.
to establish
standard
in
Virgi
enunciated
Jackson v.
Clayton,
Finally,
peace that, Deputy Kokemoor testified upon 38.03(a) (Vernon 2011). § The of- scene, his arrival at the he instructed ap- fense of arrest is elevated to a pellant drop the gun, but did felony deadly weap- if the defendant uses a Instead, comply. hand, not with 38.03(d). id. on to resist arrest. See straight walked to the door read, in part, The indictment in this case Deputy where Kokemoor standing as follows: looked at the deputy. Appellant came day September, or about the 22d [O]n close to the other side of the door and A.D.2010, Albert ... did [Atha Dobbs] Kokemoor, looked at who noted intentionally Kyle or obstruct that appellant held the to his own Kokemoor, person the defendant knew temple words, and “mouthed the ‘I’m go- effecting be from ” ing kill myself.’ Deputy Kokemoor defendant, arrest of the defen that, time, testified at the ap- he believed deadly *5 dant did then and there use a pellant attempting by cop”; “suicide firearm, resist, to-wit: a to weapon, pre is, appellant that to wanted force the offi- vent, by exhibiting or obstruct the arrest cers to shoot him. firearm, against peace dignity a and why When asked he did not shoot appel- of the State. lant, Deputy Kokemoor testified that he Analysis C. threat; gun did not believe the was a how- ever, deputy clarified that he continued On contends that the appeal, appellant keep to gun appellant his aimed at support evidence is insufficient appellant would have shot appellant had judgment of conviction because the State gun turned the toward him. he prove against” failed that “used force Kokemoor, Deputy necessary an element Citing Deputy Kokemoor’s testimony, resisting to establish the offense of point contends “at no in the that 38.03(a). See id. testimony any was there recitation of a Appellant “merely asserts that exhibit- physical struggle any use of ap- force ing a firearm” cannot constitute a use of plied by Appellant directed towards the against force a officer. Under the during Appellant officers the arrest.” also case, unique circumstances of this we dis- out that he made points no verbal threats agree. to the officers. that, Appellant testified after his wife gone police Appellant heavily
told him that she had to the also relies on reported allega- testimony the sexual assault Deputy concerning Kokemoor’s tions, suspected police pointing gun he that the would actions of at coming Appellant temple. emphasizes ap be to arrest him. ac- his own He that not, time, any knowledged pistol pellant point gun that he took a loaded did at response seeing directly deputies. from his cabinet in at the He further relies deputies driveway. testimony the sheriff’s in his He on Kokemoor’s that the deputy testified that he retrieved the because did not shoot because the Appellant deputy he was “scared.” stated that he did not believe the was a “merely feared he he ex everything Appellant would lose threat. asserts that firearm,” in the hibiting alleged had worked so hard his life to obtain. as indict- ment, is not sufficient to constitute use of Gary, 195 at 341 (holding that re- against peace force officer.3 leasing a dog vicious to attack an officer was use of though even dog never The Penal Code does not define the officer). made contact with Acts threaten- phrase “using against,” as found in ing the officer with bodily imminent harm 38.03(a); section nor does it define those have also been held to be use of force individually. words appellant correctly As State, the officer. Campbell v. out, points courts have held that passive 662, 2003, (Tex.App.-Waco noncooperation does not constitute force pet.) no (holding evidence showed use of State, an officer. See Sheehan v. force when pulled gun defendant had from 820, 201 S.W.3d 822 (Tex.App.-Waco back”). pocket yelled “get pet.) (holding passive no noncooperation of pulling arms to chest and interlocking Courts have made clear that sec them posed danger to arresting officers tion 38.03 require does not action directed and did not constitute use of force as ele officer; rather, at or toward an only it arrest); ment of see also Pum requires force opposition exerted in to the phrey 245 S.W.3d 89 n. 4 officer’s efforts making an arrest. See ref'd) (de (Tex.App.-Texarkana pet. 90-91; Pumphrey, 245 S.W.3d at see Hop scribing passive “mere resistance” or “sim per 679 (Tex.App.- ple noncooperation” sitting as with arms El Paso no pet.) (reaching conclusion crossed, like). crawling away, or the to”). “against” that term “opposition means
Nonetheless, respect “force,” With action, that, term courts when isolation, applied viewed in its common and may ordinary not rise to the *6 meaning level of as resisting may defined in constitute the dictionaries. See Rieck, (Tex. Ex parte 510, use of force in 144 certain situations. See S.W.3d 512 State, Gary 339, (Tex. v. Crim.App.2004) that, 195 (explaining S.W.3d 340 to deter 2006, App.-Waco plain word, mine pet.). meaning no of Courts have courts look to dictionaries). held that person a can forcefully resist an The Fort Worth Court of arrest without successfully Appeals making physi noted that Dictionary Black’s Law cal contact with the officer. See Sartain v. defines “force” “[p]ower as dynamically State, 416, 228 considered, 424 (Tex.App.-Fort is, action; that in motion or in 2007, 'd); Worth pet. ref see also Halibur constraining power, compulsion; strength State, 309, (Tex. ton v. 80 312-13 Haliburton, directed to an end.” 80 App.-Fort 2002, Worth pet.) no (holding S.W.3d at (quoting Black’s Law Dictio nary (5th that defendant’s act of “kicking ed.1983)); at” an State, see Robe v. officer constituted force even though 13-10-00419-CR, the No. 2012 WL connect). kick did cases, not In other *3 (Tex.App.-Corpus 7, 2012, Christi June (mem. actions which endanger (not may officer con pet.) no op.) designated for See, stitute “use of against.” e.g., pub.) (noting that Dictionary Webster’s de- brief, In appellant is critical of the lan- in the indictment before trial or he waives the guage of the indictment. right object He intimates that appeal. to on Tex Code Crim. "exhibiting the a language 1.14(b) (Vernon 2005). firearm” was inad- Proc. Ann. art. The equate allege resisting the offense of appellant arrest record does objected not show that allege Thus, because the indictment failed to that he appellant indictment. has used force arresting Ap- the right officer. complain waived his that the indict not, however, pellant formally does inadequately raise this alleged ment the elements of re Moreover, appeal. as an issue on a sisting defendant Gary arrest. See 195 S.W.3d object must to a defect in form or (Tex.App.-Waco substance pet.). no “violence, compulsion, gun fines “force” as or trained on appellant. that, He stated upon per- time, constraint exerted or at the he believed it was a “suicide thing”). Dictionary son or Black’s also by cop” situation. The could have defines force to include both actual force reasonably inferred that both appellant force. and constructive See Black’s Law Kokemoor knew that it. would Dictionary (Bd ed.1990) (describing take minimal effort for appellant to turn part, constructive as “[t]hreats gun the toward Deputy Kokemoor and for gain and intimidation to control it to become a lethal situation. Obigbo resistance”). 306 (Tex.App.-Dal- pet.) las (explaining “jurors that Applying principles set forth in free [are] to use their common sense and authorities, foregoing we conclude that apply observation, common knowledge, the evidence prove was sufficient to experience gained in ordinary af- against Deputy used force Kok- fairs of life giving when effect to the infer- conclusion, reaching emoor. In this we may ences that reasonably be drawn from not “merely need determine whether ex evidence”). hibiting a firearm” would be sufficient to support a conviction for objectively, Viewed the evidence sup- totality actions went ports an inference that appellant’s conduct beyond merely exhibiting a firearm. Ap “in opposition” was to the officers’ effectu- pellant’s act of exhibiting ating his arrest. An officer cannot effectu- that, accompanied by other conduct within ate an arrest when the person to be ar- the context of the officers’ effectuating the holding rested is refusing arrest, constituted force. surrender it. Even when a suspect is not reiterate, appellant
To retrieved a gun pointing gun directly at the response in direct to the officers’ arrival to situation is a volatile one with life and him arrest for the offense of sexual assault death consequences. The officer’s testi- Appellant displayed a child. as mony indicated that he believed it neces- he walked toward Deputy Ap- Kokemoor. sary to taser to subdue him and *7 pellant Deputy indicated his awareness of to effectuate the arrest. point, Until that by looking Kokemoor at him. Appellant appellant was using his to intimidate refused to put despite being the down the officers and to control the situation. instructed to Appellant do so. continued jury could reasonably
walking until he was close to Deputy Kok- appellant inferred that knew the officers emoor on the other side of the door. The would approach not him while he was hold appellant officers could not arrest because ing gun. the Such designed conduct is voluntarily relinquish he would not the oppose ability the officer’s to complete the gun. Appellant dropped gun, the and the Thus, jury the could have found officers were able to effectuate the “against” that his conduct was the officer. only appellant after had been tasered 90-91; Pumphrey, See at Hop twice. per, 86 out, appellant points As 38.03(a) Significantly, although
Kokemoor testified section that he did not shoot requires with his in nothing firearm because he did the statute re- not feel by appellant’s quires threatened that gun. against the force exerted the Nonetheless, Deputy Kokemoor officer physical further be violent or make contact testified that compelled keep he felt commonly with the officer. The under- 38.03, of “force” encompasses
stood definition
which
in
part
states
relevant
that a
compulsion
unaccompa-
acts of
or coercion
person
the
commits
offense of
by
physical
nied
actual acts of
violence.
arrest
if
he uses “force
the peace
Haliburton,
(adopt-
Here,
jury
could have inferred that
to resist the arrest or search.” Tex. Penal
appellant’s conduct created a volatile and
38.03(d) (West 2011).
Dobbs’s
Ann.
Code
situation,
provocative
placing all involved
sole issue on appeal challenges the suffi-
danger
in
bodily
of imminent
harm.
In
ciency of the
supporting
evidence
the use
situation,
creating
appellant’s
such a
con-
the officer or another.
duct
repel
was
effective means to
jury
arrest. The
could have found that
charged
Dobbs was
with resisting arrest
appellant’s
compulsion
acts were acts of
pursuant
to an indictment that failed to
designed
and coercion
the ar-
track the current
version
the Penal
by inducing Deputy
rest
Kokemoor into Code, omitted the element critical to the
fearing for
personal safety
his own
and for
facts of
(“using
this case
force against the
safety
of the other officers. Such an
another”)
and, instead,
officer or
compulsion
act of
opposi-
coercion in
language
recited
from a version of the
tion to the officers’ effectuating the arrest
repealed
Penal
in
1974. Although
is an act of force.
charge
this
error
preserved,
was not
evidence,
Viewing all the
direct and cir-
is, nonetheless,
resolution of this case
cumstantial, in
light
most favorable to
by
found
reference to that critical element
verdict,
we conclude that a ration-
of “force.”
found,
al fact
beyond
finder could have
Accepting Chief Justice Morriss’s invita-
doubt,
reasonable
the essential element of
State,1
tion
Pumphrey
majority’s
use of force to support
finding
its
argued
treatment can
metaphysical
be
as a
guilty
of the offense of re-
38.03(a)
recasting of section
so masterful
Jackson,
sisting arrest. See
443 U.S. at
give
as to
“penumbras” a run for their
319,
1. Pumphrey v. officer and force in opposition away but ref'd). from, App.-Texarkana pet. “The dis the officer can in result almost meta tinction between physical force directed toward the analyses.” Id. the elements of the offense Black’s Law Dictionary When one of lists the following definitions: against peace the use of “force offi- is another,” Tex. Penal
cer or “power, violence pressure or Ann. “force”— 38.03(a) (West 2011), and both the offi- against directed a person thing,” or during cer’s actions the course of the ar- “actual consisting force”—“force in a testimony rest and his trial establish act, physical esp. a violent act directed that the used no such defendant (another),” against and offense was committed. “constructive force”—“threats and in- timidation to gain prevent control or by made argument prosecu- No resistance.” force; indeed, tor that Dobbs used DictionaRy (9th ed.2009). Black’s Law told that the officer prosecutor he think gun “holstered his because didn’t Considering constructive specifi- (Defendant) and shoot.” he would turn “threat” is defined as a “communi- cally, testimony primary The from the State’s cated intent to inflict harm or loss on witness, the officer named in the indict- another.” Id. at 1618. Intimidate is “[to] ment and most instrumental in Dobbs’s fill with fear” or “to force into deter was, Kokemoor, Kyle “I did from some action inducing fear.” Ran- by not feel that the was a threat to me at UnabRidged dom House WebsteR’s Dictio- my I on point and had trained (2001). Intimi- naRY, Second Edition him the entire time at the time.” Almost dation is defined Black’s as “[u]nlawful by possessed pistol, coercion; Dobbs was of his he had Black’s, extortion.” supra, at temple. it held to his own There was no Thus, constructive force is a commu- at, pointing evidence Dobbs was or nicated intent to inflict harm on another towards, directing any other force the offi- that induces fear in the other for the pur- cers, physical struggle, no evidence of or pose gaining control or preventing resis- no evidence of threats towards the officers. tance. majority advances the notion that Actual Force “the jury appel- could have inferred that Many courts have addressed the use of pro- lant’s conduct created a volatile and actual, physical force an officer repel
vocative situation ... the arrest resisting sufficient for a arrest conviction. [by] ... compulsion acts coercion generally held that a defen Courts designed ... op- the arrest pulling against dant’s active an officer’s position effectuating officers grasp constitutes arrest.” Absent force Pumphrey v. 245 officer, however, foregoing none of the ref'd.). (Tex.App.-Texarkana pet. constitutes the “force” for a vio- required The Pumphrey court further held that by lation as contemplated the Code. “jerking against, turning in circles to re sist, thwart, twisting squirming
Force against” an struggling officer’s efforts *9 statute, by give Not defined we were all sufficient to convict for ordinary meaning. distinguished “force” its or Earlier common Id. courts (West § See Tex. Gov’t Code Ann. 311.011 between a force directed toward an officer 2005); see also Tex. Gov’t ef opposes and a force that the officer’s Ann. Code 1.05(b) (West 2010) § (making away Government forts to arrest but is directed from Code). Id. at 89-90. applicable 311.011 to Penal officer. Courts
200 agree “against”
come to that the force an not some conceptual disembodied notion of officer constitutes force directed at or to- “against” rather, or “opposition it to”— ward the officer as well as force exerted in contemplated physical contact of law en- opposition to the officer. Id. at 91. forcement officers suspects. and criminal The majority’s analysis
In its consideration of the lexical seman- would have the treating tics to cases which section 38.03 panoply whole of involving scenarios a law rise, given and “force” have majority enforcement seeking officer to make an leap takes a to leads an incorrect arrest and a criminal suspect seeking to majority opinion result. The states: avoid inexorably such a fate fall within the Courts have made clear that section ambit of section 38.03 simply because the require 38.03 does not action directed at suspect “opposes” the arrest. “op- Mere officer; rather, or toward only an it position” cannot be allowed to be miscon- requires opposition force exerted in And, 1974, strued as “force.” at least since making officer’s efforts at an arrest. neither can exhibition weapon. of a 90-91; Pumphrey, See see While one can resist by arrest force State, 676, Hopper 86 S.W.3d v. contact, even absent physical see Sartain (reach 2002, (Tex.App.-El pet.) Paso no State, 416, 228 S.W.3d 424 (Tex.App. ing conclusion that term “against” to”). 2007, ref'd) -Fort Worth “opposition pet. means (including “flailing arms” and “kicking at” officer objectively, And then notes: “Viewed without physical successful contact with evidence supports an inference that appel- officer); State, see also Haliburton v. lant’s opposition’ conduct was ‘in to the S.W.3d, 309, 312-13 (Tex.App.-Fort officers’ Worth effectuating his arrest.” Dobbs’s 2002, no pet.) (holding conduct was “in that defendant’s undoubtedly opposition” act being “kicking arrested. Absent of at” force officer constituted force officer, however, this “inference” though connect), cannot even kick did not Gary v. sustain a conviction. State, 195 S.W.3d 340 (Tex.App.-Waco pet.) no (releasing dog vicious
The discussions in both Pumphrey and attack officer was Hopper physical relate to use of even contacts between though the criminal suspect arresting dog and the never offi made contact with offi cer), cer. The discussion those cases was unless combined with actions in which physical about to shake off an offi there danger injury officer, is detaining by cer’s grip, pushing whether defendant’s cooperate refusal to being with pulling, one may who uses either guilty be arrested does not constitute resisting ar of resisting arrest under section 38.03. rest by force. Sheehan v. Bryant 207- 823 (Tex.App.-Waco 1996), (Tex.App.-Waco pet. ref'd, 940 pet.). Courts have made the distinction S.W.2d 663 (Tex.Crim.App.1997). For ex between actions that endanger an officer if ample, person pulls away his arm in a and those in which there danger is no sufficiently violent manner and with injury to the officer. Id. enough force to arresting throw the officer Here, any physical without contact be-
to the ground, he guilty is of resisting officers, tween Dobbs and the arrest the fact he under section 38.03. This is true pointed even never though weapon he at or forcefully pulled otherwise “away” from the not threatened the “towards” him. The officers is determinative of context of analysis in those cases was the absence of “actual force.”
Constructive Force from running officers, or from the a rea sonable officer ... would not proba have Fewer courts considered whether ble cause to believe at the time ... the “threats and gain intimidation to con there was a threat of physical serious trol or resistance” which describe harm to himself or others....” Stewart v. constructive force are sufficient to convict. City Vill., Kan., Prairie 904 F.Supp.2d of requires This definition consideration of (D.Kan.2012). 1143, 1154 whether the defendant communicated a threat to inflict harm on a officer or The evidence simply cannot support a (a another “force” sufficient to convict un conclusion that presented Dobbs a threat 38.03). der section Such a threat can be anyone other than himself. As Dobbs verbally by communicated or conduct. never any communicated intent to inflict (Tex. Tidwell v. harm on another that induced fear in the 2006). App.-Texarkana Clearly, a direct other for the purpose of gaining control of threat bodily against of harm an officer situation, there was no constructive satisfy communicates a threat sufficient to used a peace officer sufficient the use of force element. Campbell for a resisting arrest conviction. (Tex.App.-Waco pet.). The Campbell court held Conclusion that evidence of the defendant producing a Accordingly, I respectfully dissent. gun, back,” telling “get the officer to physically resisting was more than mere
noncooperation away,” or a “pulling
was force against the officer. Id. contrast,
In Officer Kokomoor’s testimo-
ny pointed that Dobbs never time,
anyone other than himself the entire threat, that he did not feel the to be a THOMAS, Appellant John Paul point and at no over the course of the encounter did Dobbs threatened harm to any verbally by one either action con- Texas, Appellee. The STATE of clusively analysis excludes from the any “threat” or “fear” component. When No. 01-11-00631-CR.
Dobbs retreated toward the interior Texas, Appeals Court of house, Officer Kokomoor holstered his (1st Dist.). Houston and entered the house. The evidence es- (Kokomoor’s by tablishes both word un- Feb. 2013. (the controverted testimony) and deed fact Discretionary Review Refused that he holstered his own weapon to em- April ploy. a more reasonable force to effectuate the arrest of a seeking defendant to evade
it) that no force was used
officer. Dobbs was tased as he was run-
ning away clearly from the an act
of retreat rather aggression. than “If [the threatening was not
defendant] the officers
with the facing knife and was instead away