No. 01-08-00272-CR
Opinion issued October 8, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On Appeal from the 13th District Court, Navarro County, Texas, Trial Court Cause No. 31119.
Panel consists of Justices KEYES, ALCALA, and HANKS.
EVELYN V. KEYES, Justice.
The trial court convicted appellant, Alford Brent Jeffrey, of assault causing bodily injury; the offense was enhanced because it involved a member of appellant's family and because appellant had a prior conviction for a crime against a family member. The trial court assessed punishment at imprisonment for 10 years. Appellant's sole issue on appeal is that the evidence was legally and factually insufficient to support his conviction. We affirm.
Background
On November 17, 2006, appellant called his estranged wife, Ladonna Jeffrey, the complainant, and told her that he was going to kill her and that it was his life's ambition to hurt her. Shortly thereafter, appellant entered the complainant's home without an invitation. While in the complainant's home, appellant picked up a bar stool and slammed it into the floor, punched or hit an entertainment center, threw miscellaneous items around the living room and kitchen, shoved the complainant onto a couch and demanded that she remove her clothes, and twisted the complainant's left ankle or foot. During the struggle between appellant and the complainant, appellant attempted to remove the complainant's boots, but was interrupted when the complainant's home phone rang. Appellant allowed the complainant to leave the room and to answer the phone. Moments after ending the telephone call, the complainant, without appellant's knowledge, dialed 911 and left the line "open," but the complainant did not speak into the phone. After the complainant dialed 911, appellant required the complainant to return to the couch, and he resumed his efforts to remove the complainant's boots. The arrival of a Navarro County Sheriff's deputy interrupted appellant's efforts; when the sheriff's deputy arrived, appellant left the house stating he was going to feed the horses. He returned to the house voluntarily after approximately 30 minutes and was arrested. Appellant waived his right to a jury trial. Deputy G. Hurley, the first sheriff's deputy to arrive on the scene, testified that she did not see any visible injury to the complainant's body, but she took a photograph of the complainant's foot and ankle because the complainant believed they were injured. She then called for medical assistance. Additionally, Deputy Hurley photographed the rooms of the complainant's home in which the altercation occurred. Paramedic Jonathan Towles responded to Deputy Hurley's request for medical assistance. He testified that he noticed that the complainant's foot appeared to be swollen. Complainant testified that appellant caused her pain when he twisted her foot and ankle. Other witnesses for the State, Brande Rollins and the complainant's daughter, Lauren Woldt, testified that the complainant's ankle was swollen and bruised when they observed it later on the day of the assault and on subsequent days. Counsel for appellant disputed this evidence by showing that the State's witnesses were inconsistent when identifying the location and nature of the injury to the complainant's foot and ankle. Appellant also disputed the charges against him by questioning the State's witnesses about the condition of the room when the police arrived. Appellant argued that the photographs admitted as evidence by the State show the room in generally good order and that the State's photos of the complainant's foot and ankle did not show any obvious signs of injury or bruising. Through discovery, appellant attempted to acquire a recording of the 911 call, but no recording of this call exists. The trial court found appellant guilty of assault causing bodily injury and assessed punishment at 10 years' imprisonment. Standard of Review
In an appeal of a judgment rendered after a bench trial, the trial court's findings have the same weight as a jury verdict, and we review the legal and factual sufficiency of the evidence just as we would review a jury's findings. Winkley v. State, 123 S.W.3d 707, 711 (Tex. App.-Austin, 2003, no pet). A legal sufficiency challenge requires us to determine whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000); Westbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). Although our analysis considers all of the evidence presented at trial, we may not re-weigh the evidence or substitute our judgment for that of the fact finder. King, 29 S.W.3d at 562. A factual sufficiency challenge begins with the presumption that the evidence is legally sufficient. Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We review the factual sufficiency of the evidence by viewing all of the evidence in a neutral light, and we will set the verdict aside if and only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). The weight given to contradictory testimonial evidence is within the sole province of the fact finder because it turns on an evaluation of credibility and demeanor. Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997). We may not reverse a lower court's decision simply because we disagree with the result; we must defer to the finding of the lower court, and we may find the evidence factually insufficient only when necessary to prevent a manifest injustice. Id. at 407. In conducting a factual-sufficiency review, we view all of the evidence in a neutral light. Id. at 408. In determining whether the evidence is factually insufficient, we may not conclude that a conviction is "clearly wrong or manifestly unjust" simply because, on the quantum of the evidence admitted, we would have voted to acquit. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Rather, we must accord due deference to the fact finder, who is in the best position to evaluate the credibility and demeanor of witnesses. Marshall, 210 S.W.3d at 625. In determining whether the verdict is against the great weight and preponderance of the evidence, we may not declare that a conflict in the evidence justifies a new trial simply because we disagree with the resolution of that conflict. Watson, 204 S.W.3d at 417. Before ruling that evidence is factually insufficient to support a verdict, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the verdict. Id. In conducting our review, we first address the evidence that appellant claims most undermines the verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). Assault Causing Bodily Injury In his sole issue, appellant contends that the evidence was legally and factually insufficient to convict him of assault causing bodily injury. When an appellant challenges both the legal and factual sufficiency of the evidence, we first determine whether or not the evidence was legally sufficient to support the verdict. Harmond v. State, 960 S.W.2d 404, 406 (Tex. App.-Houston [1st Dist.] 1998, no pet.). The State charged appellant with assault causing bodily injury. See, TEX. PENAL CODE ANN. § 22.01(a)(1) (Vernon Supp. 2008). The offense was enhanced to a third degree felony because the offense involved a family member and because appellant had a prior conviction for assault against a family member. See Id. at § 22.01(b)(2) (providing increased punishment for committing assault upon family member following previous conviction for assault upon family member); see also TEX. FAM. CODE ANN. § 71.003 (Vernon 2008) ("family member" includes former spouses). To prove assault causing bodily injury, the State must show that the accused, while acting intentionally, knowingly, or recklessly, caused bodily injury to another. TEX. PENAL CODE ANN. § 22.01(a)(1). "Bodily injury" is defined as physical pain, illness, or any impairment of physical condition. Id. at § 1.07(a)(8). This definition of bodily injury is "purposefully broad and seems to encompass even relatively minor physical contacts so long as they constitute more than mere offensive touching." Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989). A. Legal Sufficiency
Appellant argues that the evidence was legally insufficient to support a conviction for assault causing bodily injury because the photographs taken by Deputy Hurley do not support the verdict and because the State's witnesses provided inconsistent testimony. Appellant notes that the photographs of the room in which the assault took place show a room in generally good order. Appellant, however, devotes particular attention to Deputy Hurley's photograph of the complainant's foot and ankle, which appellant contends shows no sign of visible injury. Appellant also argues that the testimony of Deputy Hurley and Jonathan Towles indicated that there was no evidence of bruising. The legal definition of "bodily injury" does not require a visible injury. See TEX. PENAL CODE ANN. § 1.07(a)(8). Indeed, the "bodily injury" requirement may be satisfied by showing that the victim suffered physical pain. Id.; see Allen v. State, 533 S.W.2d 352, 354 (Tex. Crim. App. 1976) (holding that physical pain caused by defendant's kick to complainant's nose that resulted in swelling but no bleeding constituted "bodily injury"); Lewis v. State, 530 S.W.2d 117, 118 (Tex. Crim. App. 1975) (holding that physical pain caused by twisting victim's arm was enough to satisfy "bodily injury"). The testimony of the State's witnesses supported the trial court's verdict that the complainant experienced pain, swelling, and bruising. Appellant relies on Lane v. State, contending that Lane limits the actions that constitute "bodily injury." 763 S.W.2d 785. In Lane, the Court of Criminal Appeals stated that "'[b]odily injury' is defined as 'physical pain, illness or any impairment of physical condition.'" Id. at 786 (citing Act of May 25, 70th Leg., R.S., ch. 167, § 5.01(a)(43), 1987 Tex. Gen. Laws 1360 (amended 2003) (current version at Tex. Penal Code Ann. § 1.07(a)(8) (Vernon Supp. 2008)). It observed, "[t]his definition appears to be purposefully broad and seems to encompass even relatively minor physical contacts so long as they constitute more that mere offensive touching." Id. In Lane itself, the accused never touched the complainant; instead, the accused grabbed the complainant's purse, causing the purse strap to bruise the complainant. The Texas Court of Criminal Appeals found this sufficient to constitute "bodily injury." Id. We conclude, therefore, that Lane does not support appellant's argument that the evidence in this case was legally insufficient to support his conviction. Viewing all the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found, beyond a reasonable doubt, that appellant committed assault causing bodily injury to the complainant. See King, 29 S.W.3d at 562; Westbrook, 29 S.W.3d at 111. Therefore, we hold that the evidence is legally sufficient to show assault causing bodily injury. B. Factual Sufficiency
Appellant also contends that the evidence is factually insufficient to show that he committed assault causing bodily injury. Specifically, appellant contends that the evidence supporting the verdict is so weak, due to differing opinions on what the photographs of the scene show and the inconsistent testimony of the State's witnesses, that the verdict is clearly wrong and manifestly unjust. Appellant supports his claim of factual insufficiency by emphasizing in consistences in the State's witnesses' testimony regarding the location and coloring of the bruising on the complainant's foot and ankle and the condition of the house when the sheriffs' deputies arrived. Texas law, however, does not require that all of the State's witnesses testify consistently, or even that all the State's evidence support the State's theory of the case. Elkins v. State, 822 S.W.2d 780, 783 (Tex. App.-Houston [14th Dist.] 1992, writ ref'd). The trial court's decision to convict appellant on the basis of the testimony of the State's witnesses, in spite of conflicting statements about the location and appearance of the bruising and the condition of the house, is not manifestly unjust simply because the trial court resolved the conflicting testimony in favor of the State. See Cain, 958 S.W.2d at 410. The trial court, as the fact finder, may believe a witness even though some of his or her testimony may be contradicted, and part of a witness's testimony may be accepted while the rest is rejected. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). Thus, even acknowledging the existence of conflicting evidence, the trial court's verdict is not against the great weight and preponderance of the evidence. See Watson, 204 S.W.3d at 415. Thus, after examining all the evidence in a neutral light, we conclude that the proof of guilt was not so weak that the verdict is clearly wrong or manifestly unjust; nor is the contrary evidence of such great weight and preponderance that it contradicts the trial court's verdict. See Watson, 204 S.W.3d at 414-15. Therefore, we hold that the evidence was factually sufficient to support the trial court's verdict. We overrule appellant's sole issue. Conclusion
We affirm the judgment of the trial court.