Cole, Annie Regina v. State

• Court: Court of Appeals of Texas
• Decided: March 11, 2004
• Docket: 14-03-00084-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed March 11, 2004

Affirmed and Memorandum Opinion filed March 11, 2004.

In The

Fourteenth Court of Appeals

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NOS. 14-03-00083-CR &

      14-03-00084-CR

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ANNIE REGINA COLE, Appellant

V.

THE STATE OF TEXAS, Appellee

___________________________________________________

On Appeal from the County Criminal Court at Law No. 1

Harris County, Texas

Trial Court Cause Nos. 1128099 and 1128100

M E M O R A N D U M   O P I N I O N

            In this consolidated appeal, appellant, Annie Regina Cole, appeals her convictions for criminal trespass and resisting arrest.  She contends that the evidence is legally and factually insufficient to support her convictions.  Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

Background

            At the time of the offense, appellant was working as a custodian at Reliant Stadium.  Access to the stadium was restricted to authorized personnel.  While working, appellant refused to use the proper cleaning solution after being instructed to do so several times by her supervisor, Emelia Garcia.  Garcia talked to her supervisor about the situation, and then instructed appellant to clock out and leave about ten times.  Appellant refused, cursing at Garcia and telling her she was not going to leave. 

            Garcia retrieved Police Officer Moreno, a security guard at the stadium, to escort appellant off the property.  As Garcia and Officer Moreno were returning to the area where appellant had been working, they encountered appellant walking down a ramp.  Officer Moreno instructed appellant to leave the premises.  Appellant became argumentative, claiming she needed to talk to Garcia’s supervisor, Officer Moreno had no authority to tell her to leave, and she was going to another area of the building to work.  Officer Moreno then told appellant several times that if she did not leave the premises, she would be arrested.  Appellant began to walk away, and Officer Moreno grabbed a bag appellant was holding.  Appellant came at Officer Moreno swinging her arms, kicking, and screaming.  Officer Moreno wrestled appellant to the ground where she  clawed at his hands, arms, and groin area, and continued to strike him.  Officer Moreno did not have his handcuffs with him, so Garcia retrieved them from his car at his request.  Appellant continued to struggle as Officer Moreno attempted to handcuff her.  Appellant was eventually handcuffed and placed in a patrol car.  A jury convicted appellant of criminal trespass and resisting arrest.

Standard of Review

            Appellant claims the evidence is legally and factually insufficient to support either conviction.  In a legal sufficiency challenge, we review the evidence in the light most favorable to the verdict to determine if any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt.  King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).  We consider all evidence presented at trial; however, we do not re-weigh the evidence or substitute our judgment for that of the fact finder.  Id.  Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm.  McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

            In reviewing factual sufficiency of the evidence, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict only if “proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.”  Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).  Although we may disagree with the verdict, our factual sufficiency review must be appropriately deferential to avoid our substituting our judgment for that of the fact finder.  Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996).

Criminal Trespass

            A person commits the offense of criminal trespass when she remains on property of another without effective consent and she received notice to depart but failed to do so.  Tex. Pen. Code Ann. § 30.05(a)(2) (Vernon 2003).  The information in this case charged that appellant did “enter and remain on the property of another, namely Emelia Garcia without the effective consent of Emelia Garcia, after having received notice to depart and failing to do so.”  Appellant contends this is an allegation that Garcia was the owner of the property, and the evidence was legally and factually insufficient to prove this.  However, ownership of the property is not an element of the offense of criminal trespass.  Langston v. State, 855 S.W.2d 718, 721 (Tex. Crim. App. 1993).  Unless the State explicitly pleads “ownership,” it does not have the burden of proving it.  Thompson v. State, 12 S.W.3d 915, 920 (Tex. App.—Beaumont 2000, pet ref’d); see Brodie v. State, 1998 WL 23698, at *2 (Tex. App.—Houston [14th Dist.] Jan 22, 1998, pet ref’d) (not designated for publication).  Because the State did not explicitly allege that Garcia was the “owner” of the property, we overrule these issues.

            Next, appellant contends the evidence is legally and factually insufficient to prove she failed to leave the stadium after she was instructed to do so.  Appellant claims that because she was walking down a ramp, which was a route that could have taken her to the exit of the stadium, the state did not prove she failed to depart when she was asked to do so.  However, Garcia testified that before she left to find Officer Moreno, she asked appellant around ten times to leave the stadium, but appellant failed to do so.  Additionally, Officer Moreno testified that appellant told him while she was on the ramp that she was not going to leave.  We conclude that this is legally and factually sufficient evidence from which the jury could have found appellant failed to leave the stadium after she received notice to do so.  We overrule appellant’s issues.

Resisting Arrest

            A person commits the offense of resisting arrest if she intentionally prevents a person she knows is a peace officer from effecting an arrest by using force against the peace officer.  Tex. Pen. Code Ann. § 38.03(a) (Vernon 2003).  Appellant claims the evidence is legally and factually insufficient to support a finding that Officer Moreno was effecting an arrest when appellant used force against him.  Appellant claims she struck Officer Moreno after he grabbed her bag.  She claims he grabbed her bag only to keep her from walking to another part of the stadium, but not to effect an arrest.  An officer starts effecting an arrest when he begins efforts to gain control or physical restraint over the individual.  Bruno v. State, 922 S.W.2d 292, 294 (Tex. App.—Amarillo 1996, no pet.).  An intent to arrest, and an action taken pursuant to that intent is necessary.  Id.  An officer is no longer effecting an arrest once his actions to control or restrain the individual are complete.  Id.  According to the State’s evidence, appellant continued to strike at Officer Moreno after he wrestled her to the ground, but before he gained control of her.  Officer Moreno testified that he was taking control of appellant to effect an arrest.  Regardless of whether Officer Moreno was effecting an arrest when he grabbed appellant’s bag, we find the evidence is legally sufficient to support a finding that Officer Moreno was effecting an arrest when appellant struck him after he wrestled her to the ground.

            Appellant claims that the evidence is factually insufficient to show Officer Moreno was effecting an arrest because contrary evidence shows he did not have an intent to arrest her when he grabbed her bag.  Officer Moreno testified that when he initially went with Garcia to find appellant, he did not intend to arrest her, but only to remove her from the property.  Appellant also claims Officer Moreno’s failure to bring handcuffs is evidence of his lack of intent.  However, the State’s evidence is uncontroverted that appellant continued to struggle and strike him after he had wrestled her to the ground while effecting the arrest.  We conclude the evidence is factually sufficient to support appellant’s conviction. 

            Accordingly, the judgment of the trial court is affirmed.

                                                                        /s/        Charles W. Seymore

                                                                                    Justice

Judgment rendered and Memorandum Opinion filed March 11, 2004.

Panel consists of Justices Fowler, Edelman, and Seymore.

Do Not Publish — Tex. R. App. P. 47.2(b).