¶1dissenting.
¶2I respectfully dissent. I believe the trial court erred in refusing to charge the jury on resisting arrest. The majority acknowledges that resisting arrest “can be” a lesser included offense of assault of a peace officer, but finds the evidence does not support proof of resisting arrest.
¶3Jurors are not required to believe 100% of either side. They may pick and choose, depending upon the credibility and believability of the various witnesses. Under the evidence, outlined by the majority, at the close of the case, a jury could have believed that Gilmore did not initiate the physical contact, but he did resist arrest. Therefore, it was error to refuse the instruction. Accord, Sutton v. State, 548 S.W.2d 697 (Tex.Crim.App.1977). Consequently, I would reverse and remand for a new trial.