Opinion
No. 05-05-00271-CR
Opinion Filed June 27, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law No. 1, Collin County, Texas, Trial Court Cause No. 001-84762-04. Affirmed.
OPINION
The jury convicted Thomas Arthur Petty of assault. Appellant and the State then entered into an agreed punishment recommendation. The trial court followed the agreement and assessed a thirty-day confinement in the Collin County Jail and a $400 fine. In two points of error, appellant complains the evidence is legally and factually insufficient to support his conviction. We affirm the trial court's judgment.
We are aware that this Court now resolves issues or points, but because appellant's brief refers to points of error, we use the term "point of error" in this opinion. See Tex.R.App.P. 38.1(e).
BACKGROUND
The information alleged in two paragraphs that appellant intentionally, knowingly, and recklessly caused bodily injury to Daryl Ware (the complainant) by striking either his face or head. Appellant, a student at Collin County Community College (CCCC), complained to the College's Financial Aid Director about the recent denial of his financial aid benefits. When appellant became confrontational, a CCCC police officer and a security guard asked appellant to leave the office. It was during the attempt to remove appellant from the office that the alleged injury occurred.SUFFICIENCY OF THE EVIDENCE
Appellant argues that the State did not present legally or factually sufficient evidence to support the jury's verdict that appellant caused an injury "in the manner or means" alleged in either the information or in the court's charge. He maintains that no evidence exists to show that appellant intended to cause bodily injury to the complainant or that his hand caused the cut on the complainant's head. He also argues that the verdict is contrary to the great weight of the evidence. The State responds that the jury could infer intent from appellant's words and actions. Additionally, the State argues that it did not have to prove the specific manner and means of the assault, two witnesses testified that appellant struck the complainant with his hand, and the complainant testified to his pain. We agree with the State that legal sufficiency does not turn on "manner and means" as alleged in the indictment and as defined in the jury charge. See Phelps v. State, 999 S.W.2d 512, 517 (Tex.App.-Eastland 1999, pet. ref'd) (relying on the logic of Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997)). Therefore, we do not discuss appellant's complaint that no evidence exists to show that appellant "caused the injury in the manner and means specified either in the information or the court's charge."THE EVIDENCE
1. Debra Wilkinson Wilkinson, the Financial Aid Director at CCCC, testified that the school had cancelled appellant's financial aid. She knew from appellant's e-mail contacts with the office that he would be coming to the office. As Director, she stayed near the counter where appellant would come to complain. When appellant came into the office, he "was obviously agitated . . . [and] . . . verbal." Appellant told her that the law did not require CCCC to cancel his financial aid because he was getting aid from another school. Wilkinson explained the law prohibited them from giving him aid at CCCC if he was getting aid from another school. Appellant turned and walked away, only to return and begin "yelling." He continued leaving, returning, and "yelling" for about ten minutes. Two uniformed officers appeared-first, Jason Evans, a police officer, then Daryl Wade, a security officer. Evans told appellant "to quit talking to me that way and to come with him. . . ." When appellant began "flailing his arms and yelling" at Evans, Ware "ran up to the scene." As the officers escorted appellant from the scene, he "flailed backwards and hit [Ware]." On cross-examination, Wilkinson testified that Ware grabbed appellant in a "bear hug style hold." She admitted that she may have told appellant's attorney she did not see appellant hit Ware and she could have been influenced by other's discussions. She, however, could not say that she saw appellant's hand or fist hit Ware. Although two weeks before trial, she had told appellant's attorney that she did not see blood on Ware's head, at trial she testified she could not recall whether she saw any blood. She made a written statement at the time of the incident. After speaking with Ware's attorney, she reviewed her written statement. She admitted that her statement was rather vague, but confirmed that she saw appellant's arm go back and "something on him" hit Ware and Ware reacted to that hit.2. Shontel Penny
Penny, Division and Financial Aid Secretary for CCCC, testified that she handled the front desk, answered telephones and student's questions, and checked students' status for financial aid. She was at the desk when appellant came in and asked to speak to one of the advisors. Appellant was "kind of upset, but not really upset." Penny went back to get the advisor he wanted to see, and Wilkinson was standing in front of the advisor's cubicle. Wilkinson asked if she could help him and what was his name. At first, appellant was pretty calm. But, he got agitated when Wilkinson told him they could not pay financial aid at two schools. He became more aggressive and started to go back and forth, so Penny called security "before something happened." Evans arrived in minutes and told appellant he did not need to talk like that. About five minutes later, Ware appeared, touched appellant on the arm, and said, "come on, you need to walk with us." Appellant responded, "no, I can walk on my own, I don't need any help." Ware, Evans, and appellant walked around the corner and Penny heard sounds that sounded like wrestling.3. Jason Evans
Evans testified that he came to work for CCCC District after he had temporarily helped the police department "get through their ordeal." On the day in question, he was working in Plano. He responded to a disturbance call from the Financial Office. Appellant was ranting and verbally abusing the employees. When Evans heard appellant refer to the planes hitting the Tower, he thought he needed to get appellant out of there and calm him down away from the situation. Evans asked appellant to come with him. When appellant refused, Evans grabbed appellant's right arm, cuffed that hand, and attempted to cuff his left hand while controlling appellant's right hand. Appellant jerked away and started swinging his left hand. Ware was standing directly in front of appellant when he starting swinging his left hand. Although Evans was not sure how many times appellant hit Ware, he knew appellant's hand hit Ware at least twice-once at or near his eye and once on his forehead. Another officer, Clemons, arrived and grabbed appellant's left hand. This all occurred before they went around the corner. Appellant was handcuffed and placed in a squad car and taken to the campus police office. Ware was bleeding from a cut that extended from the bottom of his forehead to the top of his forehead.4. Daryl Ware
Ware testified that after Evans received a telephone call about an irate student in the financial aid office, Ware went to the office. When he arrived, he heard appellant being really loud and using profanity. Evans approached appellant and told him not to use that kind of language "toward the ladies." Appellant continued to yell and curse "toward the ladies." So, Evans asked appellant a second time not to use that kind of language. When appellant continued, Evans asked appellant to step outside "to resolve this matter." Appellant did not respond. Evans grabbed appellant by the arm and a "scuffle ensued." During this scuffle, Ware had appellant's left hand on which appellant wore his watch. Appellant pulled his left hand away, swung back at Ware, and struck Ware's forehead. When one of the ladies said his forehead was bleeding, Ware reached up, touched his forehead, and noticed his hand was bloody. The following day, he went to the "company doctor," who told Ware that there was no major damage, just blunt force from an object that struck him. The doctor asked him what caused the blow and Ware said he thought it was done by a large watch "on a defendant's arm." Ware had what felt like a migraine headache for about three days.SUFFICIENCY OF THE EVIDENCE 1. Standard of Review a. Legal Sufficiency
In evaluating the legal sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict to determine whether 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). The factfinder is the exclusive judge of the witnesses' credibility and of their testimony's weight, and it is within the factfinder's exclusive province to resolve any evidentiary conflicts. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). A claim of legal insufficiency is, in effect, an argument that the case should never have even been presented. Id.b. Factual Insufficiency
In reviewing the factual sufficiency of evidence to support a verdict, we must answer one question — "[c]onsidering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt." Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). We determine the factual sufficiency of evidence by (1) considering if the evidence supporting the verdict is by itself too weak to support the conviction beyond a reasonable doubt and (2) weighing the evidence supporting and contrary to the verdict to determine if the beyond-a-reasonable-doubt standard could not have been met. Id. at 484-85. In conducting this review, we must not "substantially intrude upon" the factfinder's role as the sole judge of the evidence's weight and the testimony's credibility. See Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); see also Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). We must defer to the jury's decisions on credibility and weight. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). A reasonable alternative hypothesis does not render a verdict manifestly unjust. See Saxer v. State, 115 S.W.3d 765, 773 (Tex.App.-Beaumont 2003, pet. ref'd).3. Applicable Law
A person commits assault if he intentionally, knowingly, or recklessly causes bodily injury to another. Tex. Pen. Code Ann. § 22.01 (a)(1) (Vernon Supp. 2005). Recklessly is a lesser culpable mental state than intentionally and knowingly. See Tex. Pen. Code Ann. § 6.02(d) (Vernon Supp 2005); Rocha v. State, 648 S.W.2d 298, 302 (Tex.Crim.App. 2003) (op. on reh'g) (en banc).A person acts recklessly, or is reckless, with respect to . . . the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that . . the result will occur . . . [and] . . . its disregard constitutes a gross deviation from the standard of care that and ordinary person would exercise under all the circumstances as viewed from the actor's viewpoint.Tex. Pen. Code Ann. § 6.03(c) (Vernon 2003). The penal code defines bodily injury as physical pain, illness, or any impairment of physical condition. Tex. Pen. Code Ann. § 1.07(8) (Vernon Supp. 2005).