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Date: 01-09-2018

Case Style:

Kevin James Milazzo v. The State of Texas

Texas Fifth Court of Appeals, Dallas Texas

Case Number: 05-16-01382-CR

Judge: Douglas S. Lang

Court: Texas Fifth Court of Appeals, Dallas Texas

Plaintiff's Attorney: Justin Johnson
Faith Johnson  

Defendant's Attorney: Julie Woods  

Description: The indictment alleged in part that “on or about” September 30, 2016, appellant “did then
and there intentionally prevent and obstruct N. GARCIA, a person the defendant knew to be a
peace officer, from effecting the arrest or search or transportation of the defendant, by using
force against said peace officer.”
At trial the State presented the testimony of Officer Ricardo Corral, Officer Natalia Garcia’s
partner, and a video recorded by Corral’s body camera. Garcia was unable to testify on the day
of trial because she had to leave court due to a “family emergency.” 1
Corral testified that he and Garcia responded to a major disturbance call on September 30,
2016 around 4:00 a.m. at an Extended Stay hotel in Dallas. The dispatch reported that a female
“stated she had gotten hot coffee poured on her,” and “a male inside the room had hit her.”
When Corral arrived at the hotel room he observed appellant was “agitated” and the victim
was “wet”, “had no shirt on”, “had redness from her mouth to her chest from the coffee”, and
“was in a hyped-up state.” Corral asked appellant to leave the room, but appellant “said no real
firmly” and “stated he had bad relations with the police.” However, Corral was “eventually”
able to get appellant to walk out of the room without having to remove him.
Once outside the room, Corral “attempted to effect the arrest” of appellant and “pulled out
[his] handcuffs.” In order to keep appellant calm, Corral told appellant he was “not under arrest”
and he was only “going to put cuffs on [appellant] for officer safety.” Then, when Corral tried to
handcuff appellant, he “pulled away” and “tried to turn around on [Corral].” Corral testified that
“in order to keep [appellant] from turning towards me and possibly striking me, I used balance
displacement, which is a pushing, like a shove, to regain control.” However, appellant
1 After Corral was cross-examined, the State made an oral motion for continuance in order to allow Garcia to return to court to testify. The trial court denied the motion.
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“continued to resist” and a “scuffle ensued of the [defendant] pulling and tossing away from
[Corral].”
Corral then testified that Garcia was “nearby” when appellant “continued to resist” and she
“observed [appellant and Corral] get into a scuffle.” When Corral “pushed [appellant] into the
wall” Garcia “came out to help [Corral] regain control of [appellant].” Further, Corral testified
that during the scuffle a bystander observed the scene and “asked if [he and Garcia] needed
help.” However, “by the time [the bystander] offered to assist, [he and Garcia] had gotten
[appellant] under control.” Corral then testified that both he and Garcia told the appellant to
“stop resisting” and it “took both [him and Garcia] to get [appellant] under control.”
As mentioned above, the State also introduced Corral’s body camera video into evidence. As
described by Corral in his testimony, the video recorded the voice of a “male . . . in the hallway”
whom Corral “[thought] . . . heard the scuffle,” and “saw [the officers and appellant] wrestling
and trying to get the [appellant] under control.” As described by the State’s brief, appellant could
be heard on the video telling the officers they were “probably going to have to take [appellant] to
jail for something stupid” and the video “showed appellant resisting a female officer that Corral
identified as Garcia.” Appellant stated in his brief that “no faces can be seen through most of
[the] encounter” but “[a]fter several seconds of shaky video, Garcia can be seen placing
handcuffs on appellant’s wrists behind his back.”
When the State rested, appellant made a motion for directed verdict and argued there was
“not enough [evidence] . . . to make it past the [m]otion for a [d]irected verdict in regards to the
resisting arrest against Garcia.” The trial court denied the motion.



–4–
II. Sufficiency of the Evidence
A. Standard of Review
We review a challenge to a trial court’s denial of a motion for a directed verdict as a
challenge to the sufficiency of the evidence. Canales v. State, 98 S.W.3d 690, 693 (Tex. Crim.
App. 2003); Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993). Evidence is sufficient
to support a conviction if, “after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). The Jackson
standard is the “only standard that a reviewing court should apply in determining whether the
evidence is sufficient to support each element of a criminal offense that the State is required to
prove beyond a reasonable doubt.” Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)
(plurality op.). We “determine whether the necessary inferences are reasonable based upon the
combined and cumulative force of all the evidence when viewed in the light most favorable to
the verdict.” Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007).
We are mindful that “[t]he trier of fact is the sole judge of the weight and credibility of
the evidence.” Sartain v. State, 228 S.W.3d 416, 424 (Tex. App.—Fort Worth 2007, pet. ref'd).
We give “full play to the responsibility of the trier of fact to fairly resolve conflicts in testimony,
to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.”
Jackson, 443 U.S. at 319. “Circumstantial evidence is as probative as direct evidence in
establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish
guilt.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). “When the record supports
conflicting inferences, we presume that the jury resolved the conflicts in favor of the verdict, and
we defer to that determination.” Dobbs v. State, 434 S.W.3d 166, 169 (Tex. Crim. App. 2014).
“Each fact need not point directly and independently to the guilt of the appellant, as long as the
–5–
cumulative force of all the incriminating circumstances is sufficient to support the conviction.”
Id.
B. Applicable Law
The Texas Penal Code defines resisting arrest as follows: “[a] person commits an offense if
he intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a
peace officer's presence and at his 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). Intent may be “inferred from circumstantial evidence such as acts, words, and the
conduct of the appellant.” Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). Section
38.03 of the Texas Penal Code “refers to only one offense, identifying three theories under which
it can be committed.” Finster v. State, 152 S.W.3d 215, 219 (Tex. App.—Dallas 2004, no pet.).
Therefore, “the State need prove only one of the underlying theories in order to support the
conviction.” Id. at 220.
C. Application of the Law to the Facts
In appellant’s first and second issues he claims the evidence was insufficient to support his
conviction. In appellant’s first issue, he claims the trial court erred by refusing to grant his
motion for directed verdict. In the second issue, appellant asserts there is insufficient evidence to
support his ultimate conviction of resisting arrest. Appellant cross-examined the State’s witness
but offered no independent evidence. Accordingly, we treat both issues one and two as a
challenge to the sufficiency of the evidence. See Canales v. State, 98 S.W.3d 690, 693.
Appellant contends the evidence was “insufficient to support appellant’s conviction” of
resisting arrest because (1) “[t]he State failed to prove beyond a reasonable doubt that appellant
used force against” Garcia and (2) “[t]he State also failed to prove beyond a reasonable doubt
that appellant acted with the requisite culpable mental state.” Of course, the State disagrees.
–6–
The Criminal Court of Appeals has held an appellant forcefully resists arrest when he
“actively pull[s] away” when a police officer attempts to handcuff him. Finley v. State, 484
S.W.3d 926, 927–28 (Tex. Crim. App. 2016). Additionally, the Fort Worth Court of Appeals has
held an appellant uses force to resist arrest when officers are “unable to get appellant under
control” and it requires “multiple officers to complete the arrest.” Sartain v. State, 228 S.W.3d at
425.
In the instant case, Corral testified he “pulled out [his] handcuffs” and “tried to handcuff
appellant” but appellant “pulled away” and “tried to turn around on [Corral].” Then, “[Corral]
pushed appellant into the wall” and a “scuffle ensued,” at which time Garcia “came to assist
Corral in regaining control of appellant.” Corral also testified that it “took both [himself and
Garcia] to get [appellant] under control,” and a bystander “asked if [Corral and Garcia] needed
help.” In the face of these facts, appellant also argued there was no “evidence in the record of
what force appellant used against Garcia.” However, as this Court has previously held, “it
matters not” what kind of force was used against Garcia “so long as the person is intentionally
interfering with the peace officer's duties.” Finster v. State, 152 S.W.3d at 219. On this record,
we conclude a rational trier of fact could have found beyond a reasonable doubt that appellant
used force against Garcia to prevent or obstruct her from effecting appellant’s arrest.
As to his second challenge regarding the sufficiency of the evidence, appellant raises three
points. Appellant contends the evidence was “insufficient to prove beyond a reasonable doubt
that appellant acted with the requisite culpable mental state” because (1) “the record lacks
evidence that Garcia searched or transported appellant,” (2) “Garcia did not initiate appellant’s
arrest,” and (3) “Corral explicitly told appellant that he was not being arrested.”
First, contrary to appellant’s contention, the State was not required to show appellant resisted
search or transportation because the State introduced evidence that appellant resisted arrest.
–7–
Section 38.03 of the Texas Penal Code “refers to only one offense, identifying three theories
under which it can be committed.” Finster v. State, 152 S.W.3d 215, 219 (Tex. App.—Dallas
2004, no pet.); see also TEX. PENAL CODE ANN. § 38.03(a). Accordingly, “the State need prove
only one of the underlying theories in order to support the conviction.” Id. at 220; see also
Turner v. United States, 396 U.S. 398, 420 (1970) (“[W]hen a jury returns a guilty verdict on an
indictment charging several acts in the conjunctive, ... the verdict stands if the evidence is
sufficient with respect to any of the acts charged.”). Here, the State presented evidence through
Corral’s testimony that appellant “continued to resist” and “turn[ed] and twist[ed]” away when
the officers attempt to gain control of appellant. Viewing this evidence in the light most
favorable to the verdict, a rational trier of fact could have found beyond a reasonable doubt that
appellant used force to obstruct Garcia from effecting an arrest.
Second, appellant asserts Garcia “did not initiate efforts to arrest” appellant and therefore
appellant “could not have had a conscious objective or desire to prevent or obstruct Garcia from
arresting him.” Appellant cited no case law to support this argument. One resists arrest when he
intends to obstruct a peace officer from “effecting an arrest,” which “encompass[es] the
reasonable actions of a peace officer in bringing a person under the officer's control for the
purposes of the law.” Schrader v. State, 753 S.W.2d 733, 735; see also Bruno v. State, 922
S.W.2d 292, 293 (Tex. App.—Amarillo 1996, no pet.) (“From the instant the officer begins his
efforts to gain control or physical restraint over the individual until the restraint is perfected, he
can be considered ‘effecting an arrest’”). Intent may be “inferred from circumstantial evidence
such as acts, words, and the conduct of the appellant.” Guevara v. State, 152 S.W.3d 45, 50.
Here, Garcia was involved with Corral in the “scuffle” with appellant. She grabbed
appellant’s arm in an attempt to “regain control of [appellant]” and appellant “pulled away.”
Then, Garcia placed appellant in handcuffs. A rational trier of fact could have found beyond a
–8–
reasonable doubt that Garcia was effecting an arrest and appellant intended to obstruct her from
doing so.
Third, appellant argues he “could not have resisted arrest because he was told he was not
under arrest.” However, it is “not necessary to announce to [a defendant] that he is under arrest.”
White v. State, 601 S.W.2d 364, 366 (Tex. Crim. App. 1980). As the Fort Worth Court of
Appeals held, “the State must only prove that appellant obstructed a person he knows to be a
police officer.” Sartain v. State, 228 S.W.3d 416, 423 (Tex. App. 2007); see also Bruno v. State,
922 S.W.2d at 295 (“[O]fficers [are] not obligated to orally admonish [defendant] prior to
making the arrest.”).
In this case, both Garcia and Corral were wearing Dallas Police Department uniforms when
they spoke to appellant in the hotel room. Appellant acknowledged he was aware Garcia and
Corral were police officers when he stated the officers were “probably going to have to take
[him] to jail for something stupid.” Corral also testified appellant “pull[ed] and toss[ed] away”
when the officers attempted to place him in handcuffs. Based on this record, a rational trier of
fact could have found beyond a reasonable doubt that appellant knew Garcia and Corral were
police officers and that appellant intended to prevent them from effecting his arrest.

III. Modification of Judgment
In his third issue, appellant requested this Court reform the judgment to reflect the correct
name of the defense attorney who represented appellant at trial.
A. Applicable Law
This court may modify the trial court’s judgment and affirm it as modified. See Tex. R. App.
P. 43.2(b); Bigley v. State, 865 S.W.2d 26 (Tex. Crim. App. 1993). This Court “has the power to
correct and reform the judgment of the court below to make the record speak the truth when it
has the necessary data and information to do so.” Asberry v. State, 813 S.W.2d 526, 529 (Tex.
–9–
App.—Dallas 1991, pet. ref'd). Appellate courts may reform trial court judgments where “the
evidence necessary to correct the judgment appears in the record.” Id.
B. Application of the Law to the Facts
The judgment reflects that Douglas Huff represented appellant at trial. However, the
reporter’s record and the clerk’s record both indicate that Jesse Landes was appellant’s attorney
at trial. We modify the trial court’s judgment to correctly reflect that Jesse Landes was
appellant’s attorney at trial.

Outcome: Appellant’s first and second issues are decided against him. We decide appellant’s third issue in his favor. We affirm the trial court’s judgment as modified.

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