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Click here for the full text of this decision FACTS:On Nov. 3, 2000, Officer Doug Carter of the Woodsboro Police Department attempted to stop appellant’s automobile after he witnessed appellant make several illegal turns. Appellant did not pull over and instead drove to his mother’s house. When appellant finally stopped his vehicle, both he and Carter exited their cars, at which point, Carter drew his handgun and ordered him to the ground. Appellant refused to comply. He shouted obscenities to the officer, including a vulgarly-couched demand that the officer produce a warrant for his arrest. Despite appellant’s agitated state and obvious disrespect for police authority, Carter holstered his weapon and proceeded to force appellant into physical submission using his 325-pound, five-foot eleven-inch physique. Carter laid both hands on appellant, a man of 180 pounds, standing five feet and six inches tall, and was attempting to restrain him with handcuffs when appellant got his arms loose and apparently struck Carter several times in a struggle to free himself. Carter then shoved appellant, who, in the officer’s words, “flew into a [nearby] mobile home.” At this point, Carter was reinforced by Deputy Mitch Horner, who forced appellant against the side of the trailer using what he described as a “half Nelson” maneuver. With the help of a third agent, Officer Merritt of the Refugio Police Department, the peace officers successfully restrained appellant and after some talk of pepper spray, convinced him to get into one of their squad cars. Following the incident, Carter was examined by medical professionals at a nearby hospital and told to take a Tylenol. On Nov. 28, 2000, appellant was charged, by information, with driving with a suspended license, evading arrest, and resisting arrest. On Dec. 27, 2000, following pleas of nolo contendere, judgments of guilt were entered on all three charges. On Jan. 19, 2001, the State filed an indictment charging appellant with assault on a peace officer based on the events of Nov. 3, 2000. Before trial, appellant raised a double jeopardy objection to the State’s case. The trial court overruled the objection, and appellant was tried before a jury and convicted. HOLDING:The court reverses the trial court’s judgment and enters a judgment of acquittal. The resisting arrest information alleged that appellant “did . . . intentionally and knowingly . . . use force against Doug Carter, . . . a person Robert Lee Ortega knew to be a peace officer, [by] resist[ing] being handcuffed by pulling away and refusing to cooperate with Doug Carter.” The indictment for assault on a police officer alleged that appellant “did . . . intentionally and knowingly cause bodily injury to Doug Carter by striking Doug Carter with his hand . . . and said offense was committed while Doug Carter was lawfully discharging an official duty, to-wit: arresting . . . [appellant].” At trial, the state relied on appellant’s conduct in resisting arrest to prove assault on a peace officer. Carter testified that appellant struck at him with his hand as he was attempting to handcuff appellant to place him under arrest. This testimony was corroborated by Horner, who testified that appellant struck Carter as Carter was trying to place him under arrest. Thus, in the assault trial, the state relied on and proved the same facts — showing an intentional use of force against the officer — that were necessary to prove the resisting arrest charge. The state thus established that appellant committed the offense of resisting arrest for the second time. This is not allowed. It is clear from the indictment and the reporter’s record that the state was obligated to and did, in fact, prove that the assault occurred while Carter was in the process of arresting appellant. Because appellant had already been convicted for conduct that was a necessary element of the offense for which he was later charged and subsequently convicted, his claim of double jeopardy must be sustained. The state, however, argues that appellant’s prior conviction for resisting arrest was void and therefore cannot be the basis for a double jeopardy claim in the case at bar. The court rejects this argument. The state contends that the judgment in the resisting arrest case reflects the charge of driving while license suspended and that this fatal variance between the judgment and the charging instrument rendered the judgment void. At best, the state’s argument tells only half of the story. From this language of the judgment in appellant’s prior conviction, there can be no mistaking the judgment of the court: “Guilty as charged” means guilty of resisting arrest. OPINION:Garza, J.; Hinojosa, Yanez and Garza, JJ.

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