in Re: The Estate of Grimes E. Pearson

• Court: Court of Appeals of Texas
• Decided: February 27, 2006
• Docket: 07-05-00305-CV
• Status: Published

Opinion

NO. 07-05-0305-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

FEBRUARY 27, 2006

______________________________

In the Estate of GRIMES E. PEARSON, Deceased _________________________________

FROM THE COUNTY COURT AT LAW NO. 3 OF LUBBOCK COUNTY;

NO. 2003-769,230; HON. PAULA LANEHART, PRESIDING _______________________________ ON MOTION TO DISMISS ________________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Appellants Sharon Brown, individually and as successor trustee of the Grimes Pearson Trust and the Ruth Pearson Trust, David Pearson and Michael Pearson, and appellee Loretta L. Pearson, individually and as independent executor of the estate of Grimes E. Pearson, deceased, by and through their attorneys, have filed a joint motion to dismiss this appeal. Without passing on the merits of the case, we grant it pursuant to Texas Rule of Appellate Procedure 42.1(a)(2) and dismiss the appeal. Having dismissed the appeal at the parties' request, no motion for rehearing will be entertained, and our mandate will issue forthwith.

Brian Quinn

Chief Justice

rties proceeded into the living room of the house where both Brittny and her mother began hitting appellant. As the altercation continued, appellant fell off the couch and was screaming, yelling, flailing, and rolling around on the floor. Brittny called her brother for assistance to remove appellant from the house and also called the police.

Officer Faustino Martinez was the first officer to arrive. Although he initially waited for backup before entering the house, when appellant's mother approached him screaming for help, he entered the house. Martinez observed appellant's brother Leonard in the process of trying to restrain appellant on the floor. When Martinez attempted to put handcuffs on appellant, appellant told him, "I'm going to get your gun," and Martinez saw appellant's hand on the bottom of his gun. Leonard assisted the officer in removing appellant's hand from the gun and in handcuffing him.

The standard by which we review the legal sufficiency of the evidence is well established. We refer the parties to Jackson v. Virginia, 443 U. S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) for explanation.

An offense is committed if a person "intentionally or knowingly and with force takes or attempts to take from a peace officer . . . the officer's firearm . . . with the intention of harming the officer or a third person." Tex. Pen. Code Ann. §38.14(b) (Vernon Supp. 2006). Appellant contends the evidence is insufficient to show that he committed the act intentionally or knowingly and with force. This is so, he argues, because he suffered a seizure which was "the impetus" in this case, and Martinez used a holster that would have prevented his weapon being taken from him by force.

Intent may be inferred from circumstantial evidence such as the words, acts, or conduct of the appellant. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). In the record before us is evidence that 1) appellant was yelling and verbally abusive and had grabbed his sister around the neck even before he was allegedly showing symptoms of a seizure, 2) appellant then began kicking, flailing, and screaming on the floor, 3) Brittny testified that, before the officer was getting ready to put the handcuffs on appellant, appellant stated, "[S]omebody get his gun, he's trying to kill me," although the officer had not touched his firearm, 4) appellant lunged at the officer while the officer was trying to restrain him, 5) the officer believed there was a potential for violence, 6) appellant told the officer, "I'm going to get your gun," 7) appellant wrapped the bottom of his hand around the bottom of the gun and later grabbed for the top portion, 8) the officer did not believe that appellant merely touched his gun during appellant's flailing, and 9) the officer considered the attempt to take his gun as life threatening. This evidence viewed in its most favorable light is sufficient to allow a rational trier of fact to infer beyond reasonable doubt that appellant knowingly or intentionally and with force attempted to seize the officer's weapon.

Accordingly, appellant's issue is overruled, and the judgment is affirmed.

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