Opinion
No. 01-04-01190-CR
Opinion issued November 17, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 174th District Court, Harris County, Texas, Trial Court Cause No. 991273.
Panel consists of Justices NUCHIA, JENNINGS, and HIGLEY.
MEMORANDUM OPINION
A jury convicted appellant, Michael Anthony Salazar, of assault of a household member by causing bodily injury, enhanced by one prior conviction of assault of a family member. The trial court assessed punishment at twelve years in prison. On appeal, appellant challenges the legal and factual sufficiency of the evidence (1) to support his conviction, (2) to establish that the complainant was a member of appellant's household, and (3) to establish that the prior assault was of a family member. We affirm.
BACKGROUND
On the morning of May 19, 2004, the complainant was sitting on his front porch looking through his mail. The complainant's step-son, hereinafter appellant, came up to him holding a truck shock absorber and yelling obscenities. Appellant then kicked the complainant in the left eye, causing the complainant to fall down from his chair. Appellant's sister-in-law and sister heard the noise on the porch and came out of the house. Appellant then kicked the complainant a second time. During the trial, the State's witnesses testified that four or five years ago, appellant had lived with the complainant for a period of time varying from three weeks to five months. In addition, appellant's sister testified that she was the victim of an assault for which appellant had been previously convicted.DISCUSSION
In six points of error, appellant contends that the evidence was legally and factually insufficient to support his conviction for felony assault because (1) the State's evidence incriminating the appellant was not credible, (2) the State did not prove that the complainant was part of the appellant's household, and (3) the State did not prove that the appellant's prior assault conviction was against a family member.A. The Standard of Review
In our legal-sufficiency review, we view the evidence in the light most favorable to the verdict and ask whether any rational fact finder could have found the crime's essential elements beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). In our factual-sufficiency review, we examine all of the evidence neutrally and ask whether proof of guilt is so obviously weak as to undermine confidence in the jury's determination or so greatly outweighed by contrary proof as to indicate that a manifest injustice has occurred. See Zuliani v. State, 97 S.W.3d 589, 593-94 (Tex.Crim.App. 2003). Under both legal and factual sufficiency, the fact finder is the sole judge of the weight and credibility of the witnesses' testimony. Johnson, 23 S.W.3d at 7. The jury may choose to believe all, some, or none of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986).B. The Law
The indictment alleged that appellant had committed the felony offense of assault against a household member pursuant to Penal Code section 22.01(a)(1) and (b)(2). See Tex. Pen. Code Ann. 22.01(a)(1), (b)(2) (Vernon Supp. 2004-2005). In order to prove that appellant assaulted a household member, the State had to prove that (1) appellant "intentionally, knowingly, or recklessly cause[d] bodily injury," (2) against "a member of the defendant's family or household," and (3) to "show on the trial of the offense that the defendant has been previously convicted of an offense against a member of the defendant's family or household." TEX. PEN. CODE ANN. 22.01(a)(1), (b)(2). The term "family," as used by Penal Code section 22.01(b)(2), includes individuals related by consanguinity or affinity. TEX. PEN. CODE ANN. 22.01(e)(1) (Vernon Supp. 2004-2005); TEX. FAM. CODE ANN. 71.003 (Vernon 2002). Individuals are related to one another by consanguinity if one is a descendent of the other or they share a common ancestor. Tex. Gov't Code Ann. 573.022(a) (Vernon 2004). Two individuals are related to each other by affinity if they are married to each other or the spouse of one of the individuals is related by consanguinity to the other individual. TEX. GOV'T CODE ANN. 573.024(a) (Vernon 2004). The term "household," as used by Penal Code section 22.01(b)(2), includes persons living together in the same dwelling regardless of whether they are related to one another. TEX. PEN. CODE ANN. 22.01(e)(2); TEX. FAM. CODE ANN. 71.005 (Vernon 2002). A "member of a household" includes a person who previously lived in a household. TEX. FAM. CODE ANN. 71.006 (Vernon 2002).C. Credibility of State's Evidence
In points of error one and two, appellant contends that the evidence is legally and factually insufficient to support his conviction because the State's evidence incriminating appellant was not credible. More specifically, appellant argues that there is insufficient "evidence to establish that the appellant had assaulted the complainant as alleged in the indictment." The indictment, in pertinent part, states:MICHAEL ANTHONY SALAZAR, hereafter styled the Defendant, heretofore on or about MAY 19, 2004, did then and there unlawfully, intentionally and knowingly cause bodily injury to ROY GUERRERO, a member of the Defendant's HOUSEHOLD, and hereafter styled the Complainant by STRIKING THE COMPLAINANT WITH HIS FOOT.Appellant argues that the evidence against him is not credible because only one of the two witnesses saw appellant kick the complainant in the eye, the other witness could not adequately explain how appellant could have kicked the complainant with a table blocking appellant's path, and no shock absorber was found on appellant at the time of his arrest. The fact finder judges the credibility of the witnesses. We do not. Johnson, 23 S.W.3d at 7. The evidence showed that one witness saw the assault; the table was not between the complainant and appellant at the time of the assault; and someone had taken the shock absorber from appellant before his arrest. Appellant did not introduce any evidence to the contrary. The State's evidence is both legally and factually sufficient to support appellant's conviction for assault. We overrule points of error one and two.