In The Court of Appeals Seventh District of Texas at Amarillo ________________________
No. 07-22-00042-CR ________________________
MARGARITA HERNANDEZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the County Court Deaf Smith County, Texas Trial Court No. 2021-00223, Honorable D.J. Wagner, Presiding
October 26, 2022
MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.
Margarita “Mona” Hernandez appeals her two misdemeanor convictions, one for
resisting arrest or transport and the other for interfering with public duties. Four issues
pend for review. We reform the judgment and affirm. Background
Appellant was charged via information with (1) “intentionally prevent[ing] or
obstruct[ing] Trevor Anderson, a person the defendant knew to be a peace officer, from
effecting an arrest or search or transportation of the defendant by using force against said
peace officer” and (2) with criminal negligence, interrupting, disrupting, impeding, or
interfering with Anderson by refusing to leave the scene while Anderson was performing
a duty or exercising authority imposed and granted by law; namely, securing the scene
of a fire for firefighters. She pleaded not guilty to both and trial before a jury ensued.
The jury heard evidence illustrating that the purported home of appellant caught
fire. Firefighters appeared to extinguish it. While at the scene, the fire marshal requested
Deputy Anderson to remove people from the area, including appellant, as they attempted
to combat the blaze. Appellant initially refused. She and the deputy then engaged in a
very brief argument, culminating in Anderson asking appellant whether he was going to
arrest her. She said no and walked away. The deputy then warned her that she would
be arrested if she “stepped back on my scene.” Audio and visual evidence from the
deputy’s body camera captured appellant hesitating, looking back at the deputy, and
indicating she would return because that was “her house.” Her having uttered that, the
deputy attempted to handcuff her. As he did, appellant swung her left arm toward him
and also grasped the cuffs. Her efforts proved futile when another deputy appeared to
assist.
Issue One—Sufficiency of the Evidence – Count I
Via her first issue, appellant contends the evidence is insufficient to support her
conviction for resisting arrest. Allegedly, the State failed to prove she used force against
the deputy. We overrule the issue.
2 The standard of review is that explained in Jackson v. Virginia, 443 U.S. 307, 99
S. Ct. 2781, 61 L. Ed. 2d 560 (1979), Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App.
2010) and Dobbs v. State, 434 S.W.3d 166 (Tex. Crim. App. 2014). We apply it here.
Next, a person commits the offense of resisting arrest, search, or transportation if
she intentionally prevents or obstructs a person she knows is a peace officer or a person
acting in a peace officer’s presence and at the officer’s direction from effecting an arrest,
search, or transportation of the actor or another by using force against the peace officer
or another. TEX. PENAL CODE ANN. § 38.03(a). The phrase “using force against the peace
officer or another” means “violence or physical aggression, or an immediate threat
thereof, in the direction of and/or into contact with, or in opposition or hostility to, a peace
officer or another.” Dobbs, 434 S.W.3d at 171. A use of force that is “against the officer’s
goal of effectuating an arrest in the sense that it is hostile to or contrary to that goal, but
that is not directed at or in opposition to the officer, is not covered by the plain terms of
the statute.” Id.
Appellant concedes that the video evidence established her reluctance to be taken
into custody; however, she argues no rational trier of fact could have found that she used
force against Deputy Anderson (or any other peace officer) to prevent that arrest. Yet,
video from the deputy’s body camera illustrates otherwise. A rational jury can reasonably
view the images captured by it as showing appellant (1) arguing with the deputy and (2)
pushing, swinging, or striking her arm out toward him once or twice as he tried to detain
her. This is some evidence on which a rational jury could conclude, beyond reasonable
doubt, that appellant’s actions consisted of more than simply using force against the
effectuation of an arrest. It could find beyond reasonable doubt she used force against
him. See Finley v. State, 484 S.W.3d 926, 928 (Tex. Crim. App. 2016) (finding the
3 defendant’s action of pulling away from the officers satisfied the “in opposition or hostility
to” the police officer requirement).
Issue Two—Sufficiency of the Evidence – Count II
Through her second issue, appellant argues the evidence is insufficient to support
her conviction for interference with public duties. This is supposed so because the State
failed to prove she interfered with any public duty. We overrule the issue.
The same standard of review mentioned earlier applies here. Furthermore, one
commits an offense under section 38.15 of the Penal Code “if the person with criminal
negligence and interrupts, disrupts, impedes, or otherwise interferes with . . . a peace
officer while the peace officer is performing a duty or exercising authority imposed or
granted by law.” TEX. PENAL CODE ANN. § 38.15(a)(1). According to appellant, the video
evidence showed her leaving the scene as directed by law enforcement. The deputy also
allegedly testified that she did not interfere with any public duty and said “[n]ot that I saw”
when asked on cross-examination whether appellant was interfering with the scene.
Diverting an officer’s attention from his normal duties constitutes interference
under section 38.15. Russell v. State, No. 02-20-00024-CR, 2022 Tex. App. LEXIS 2287,
at *11-12 (Tex. App.—Fort Worth April 7, 2022, pet. ref’d) (mem. op., not designated for
publication). Here, Anderson was tasked with securing a safety perimeter around the fire
by removing individuals to a safe distance. Appellant initially refused to leave but
eventually began walking away at the verbal urging of the deputy. Yet, appellant did not
cease her bickering with the deputy, who followed her. And, when told she would be
arrested if she returned to the scene, appellant threatened just that . . . a return to the
scene because it was her house burning. That resulted in her arrest. Having to intercede
upon her threat to return, the deputy was distracted from his assigned task of securing a
4 safety perimeter. That is some evidence on which the jury could have rationally found,
beyond reasonable doubt, that appellant interfered with or disrupted the deputy’s
performance of a duty. See, e.g., Key v. State, 88 S.W.3d 672, 676 (Tex. App.—Tyler
2002, pet. ref’d) (finding evidence sufficient when the defendant repeatedly stepped off
the sidewalk and headed toward another individual after officers told him to remain on the
sidewalk). We overrule appellant’s second issue.
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In The Court of Appeals Seventh District of Texas at Amarillo ________________________
No. 07-22-00042-CR ________________________
MARGARITA HERNANDEZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the County Court Deaf Smith County, Texas Trial Court No. 2021-00223, Honorable D.J. Wagner, Presiding
October 26, 2022
MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.
Margarita “Mona” Hernandez appeals her two misdemeanor convictions, one for
resisting arrest or transport and the other for interfering with public duties. Four issues
pend for review. We reform the judgment and affirm. Background
Appellant was charged via information with (1) “intentionally prevent[ing] or
obstruct[ing] Trevor Anderson, a person the defendant knew to be a peace officer, from
effecting an arrest or search or transportation of the defendant by using force against said
peace officer” and (2) with criminal negligence, interrupting, disrupting, impeding, or
interfering with Anderson by refusing to leave the scene while Anderson was performing
a duty or exercising authority imposed and granted by law; namely, securing the scene
of a fire for firefighters. She pleaded not guilty to both and trial before a jury ensued.
The jury heard evidence illustrating that the purported home of appellant caught
fire. Firefighters appeared to extinguish it. While at the scene, the fire marshal requested
Deputy Anderson to remove people from the area, including appellant, as they attempted
to combat the blaze. Appellant initially refused. She and the deputy then engaged in a
very brief argument, culminating in Anderson asking appellant whether he was going to
arrest her. She said no and walked away. The deputy then warned her that she would
be arrested if she “stepped back on my scene.” Audio and visual evidence from the
deputy’s body camera captured appellant hesitating, looking back at the deputy, and
indicating she would return because that was “her house.” Her having uttered that, the
deputy attempted to handcuff her. As he did, appellant swung her left arm toward him
and also grasped the cuffs. Her efforts proved futile when another deputy appeared to
assist.
Issue One—Sufficiency of the Evidence – Count I
Via her first issue, appellant contends the evidence is insufficient to support her
conviction for resisting arrest. Allegedly, the State failed to prove she used force against
the deputy. We overrule the issue.
2 The standard of review is that explained in Jackson v. Virginia, 443 U.S. 307, 99
S. Ct. 2781, 61 L. Ed. 2d 560 (1979), Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App.
2010) and Dobbs v. State, 434 S.W.3d 166 (Tex. Crim. App. 2014). We apply it here.
Next, a person commits the offense of resisting arrest, search, or transportation if
she intentionally prevents or obstructs a person she knows is a peace officer or a person
acting in a peace officer’s presence and at the officer’s direction from effecting an arrest,
search, or transportation of the actor or another by using force against the peace officer
or another. TEX. PENAL CODE ANN. § 38.03(a). The phrase “using force against the peace
officer or another” means “violence or physical aggression, or an immediate threat
thereof, in the direction of and/or into contact with, or in opposition or hostility to, a peace
officer or another.” Dobbs, 434 S.W.3d at 171. A use of force that is “against the officer’s
goal of effectuating an arrest in the sense that it is hostile to or contrary to that goal, but
that is not directed at or in opposition to the officer, is not covered by the plain terms of
the statute.” Id.
Appellant concedes that the video evidence established her reluctance to be taken
into custody; however, she argues no rational trier of fact could have found that she used
force against Deputy Anderson (or any other peace officer) to prevent that arrest. Yet,
video from the deputy’s body camera illustrates otherwise. A rational jury can reasonably
view the images captured by it as showing appellant (1) arguing with the deputy and (2)
pushing, swinging, or striking her arm out toward him once or twice as he tried to detain
her. This is some evidence on which a rational jury could conclude, beyond reasonable
doubt, that appellant’s actions consisted of more than simply using force against the
effectuation of an arrest. It could find beyond reasonable doubt she used force against
him. See Finley v. State, 484 S.W.3d 926, 928 (Tex. Crim. App. 2016) (finding the
3 defendant’s action of pulling away from the officers satisfied the “in opposition or hostility
to” the police officer requirement).
Issue Two—Sufficiency of the Evidence – Count II
Through her second issue, appellant argues the evidence is insufficient to support
her conviction for interference with public duties. This is supposed so because the State
failed to prove she interfered with any public duty. We overrule the issue.
The same standard of review mentioned earlier applies here. Furthermore, one
commits an offense under section 38.15 of the Penal Code “if the person with criminal
negligence and interrupts, disrupts, impedes, or otherwise interferes with . . . a peace
officer while the peace officer is performing a duty or exercising authority imposed or
granted by law.” TEX. PENAL CODE ANN. § 38.15(a)(1). According to appellant, the video
evidence showed her leaving the scene as directed by law enforcement. The deputy also
allegedly testified that she did not interfere with any public duty and said “[n]ot that I saw”
when asked on cross-examination whether appellant was interfering with the scene.
Diverting an officer’s attention from his normal duties constitutes interference
under section 38.15. Russell v. State, No. 02-20-00024-CR, 2022 Tex. App. LEXIS 2287,
at *11-12 (Tex. App.—Fort Worth April 7, 2022, pet. ref’d) (mem. op., not designated for
publication). Here, Anderson was tasked with securing a safety perimeter around the fire
by removing individuals to a safe distance. Appellant initially refused to leave but
eventually began walking away at the verbal urging of the deputy. Yet, appellant did not
cease her bickering with the deputy, who followed her. And, when told she would be
arrested if she returned to the scene, appellant threatened just that . . . a return to the
scene because it was her house burning. That resulted in her arrest. Having to intercede
upon her threat to return, the deputy was distracted from his assigned task of securing a
4 safety perimeter. That is some evidence on which the jury could have rationally found,
beyond reasonable doubt, that appellant interfered with or disrupted the deputy’s
performance of a duty. See, e.g., Key v. State, 88 S.W.3d 672, 676 (Tex. App.—Tyler
2002, pet. ref’d) (finding evidence sufficient when the defendant repeatedly stepped off
the sidewalk and headed toward another individual after officers told him to remain on the
sidewalk). We overrule appellant’s second issue.
Issues Three and Four—No Instruction on a Defensive Issue and Harm
Appellant’s third and fourth issues involve her conviction under section 38.15 of
the Texas Penal Code, that is, interfering with public duties. Allegedly, the trial court erred
by failing to submit an instruction on a defensive issue, which instruction no one
requested. The omission allegedly resulted in egregious harm. We overrule both points.
The defense appears at section 38.15(d) of the Texas Penal Code. According to
that provision, “[i]t is a defense to prosecution under this section that the interruption,
disruption, impediment, or interference alleged consisted of speech only.” TEX. PENAL
CODE ANN. § 38.15(d). No one requested the court to instruct the jury under section
38.15(d). That omission resulted in the waiver of appellant’s complaint. See Bennett v.
State, 235 S.W.3d 241, 243 (Tex. Crim. App. 2007) (stating that “[d]efensive instructions
must be requested in order to be considered applicable law of the case requiring
submission to the jury”).
Appellant’s citation to Franklin v. State, 579 S.W.3d 382 (Tex. Crim. App. 2019)
does not obligate us to hold otherwise. Before concluding, the Court of Criminal Appeals
said that “if [Franklin] is referring to his right to submit a statutory defensive issue
regarding his age to a trier of fact, that claim is a forfeitable claim.” Id. at 390. And, as
explained by the opinion it cited to support the statement, “a defensive issue does not
5 become law applicable to the case if it is neither requested nor submitted.” Chase v.
State, 448 S.W.3d 6, 11-12 n.27 (Tex. Crim. App. 2014). Thus, not only does “a
defendant who fails to request a defensive issue forfeit[] the issue entirely” but the
reviewing court need not engage in an Almanza harm analysis. Id. In other words,
Franklin comports with Bennett. So, we need not assess the accuracy of either issue.
Reformation of Judgment
In our review of the matter before us, we noted two mistakes in the Nunc Pro Tunc-
Judgment of Conviction by Jury. First, under Plea to Offense, the decree mentions that
appellant pleaded “Guilty” to each count; she actually pleaded not guilty. Second, under
“Plea to 1st Enhancement Paragraph” and “Findings on 1st Enhancement Paragraph,” it
recites an entry and findings of “True”; there was no enhancement paragraph. Because
we have the power to reform the judgment to speak the truth, Bigley v. State, 865 S.W.2d
26, 27-28 (Tex. Crim. App. 1993), we reform the decree to reflect “Not Guilty” pleas to
each count and to delete the plea of “True” in reference to an enhancement paragraph.
As reformed, the judgment is affirmed.
Brian Quinn Chief Justice
Do not publish.