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Court of Appeals of Texas, Fifth District, DallasAug 18, 2003
No. 05-02-01647-CR (Tex. App. Aug. 18, 2003)

No. 05-02-01647-CR

Opinion filed August 18, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F01-39298-VJ AFFIRMED

Before Justices MORRIS, WRIGHT, and MOSELEY.


Gregory Marcell Fuller appeals his conviction for injury to a child fourteen years of age or younger. Appellant waived a jury trial and pleaded not guilty. The trial court found appellant guilty, found one enhancement paragraph true, and assessed punishment at eight years' confinement. In two points of error, appellant contends the evidence is factually insufficient to sustain the conviction and the trial court's judgment should be reformed to delete the fine.


At trial, Latricia McSorley testified that on April 16, 2001, appellant was living in an apartment with McSorley's sister, Shondral Kennedy, and McSorley's thirteen-year-old niece H.K. and nine-year-old nephew M.K. McSorley lived a short distance from appellant in the same apartment complex. That morning, H.K. asked McSorley's to come to her apartment because appellant was arguing with H.K. McSorley went with H.K. to H.K.'s apartment. Appellant was angry and upset, and he smelled of alcoholic beverage. McSorley and appellant began arguing. Appellant hit McSorley in the face with his fist and broke her nose. McSorley fell to the floor bleeding. When she turned around to get up, she saw appellant hit H.K. in the head repeatedly with a closed fist. Appellant also hit M.K. in the face when M.K. tried to pull appellant off of H.K. McSorley got up and tried to separate appellant from H.K. McSorley grabbed a cordless telephone, and both she and H.K. ran outside the apartment. Appellant ran after them, grabbed the telephone from McSorley, then left the scene. McSorley testified neighbors called the police. While she and H.K. stood outside, H.K. stated her face and head hurt. McSorley saw "knots" over and under H.K.'s eye, swelling to H.K.'s face and jaw, and several knots in H.K.'s head. Police arrived within minutes and tried to find appellant, but he had left the scene in Kennedy's car. McSorley's brother arrived and took McSorley and H.K. to the emergency room, where they were both treated and released. H.K.'s medical records show she sustained a facial contusion and facial swelling. McSorley further testified a photograph that was taken of H.K. and offered into evidence did not clearly show H.K.'s injuries. William Rowe, a Lancaster fireman/paramedic, testified that when he arrived at the scene, both McSorley and H.K. were upset and crying. H.K. told Rowe she had been repeatedly struck in the jaw with a closed fist. Rowe testified he saw swelling to the left side of H.K.'s face. Rowe also testified that although the photograph that was taken of H.K. and offered into evidence did not show H.K.'s injuries clearly, he remembered seeing H.K.'s swollen face on the day of the incident. Lancaster police officer Jason Boulton testified that when he arrived at the scene, he saw a knot on the left side of H.K.'s face and facial swelling, and he saw McSorley bleeding from the nose and mouth. Kelli Bedard, a Child Protective Services investigator, testified she went to H.K.'s home the day after the incident and interviewed H.K., her brother, and Kennedy. Bedard noticed H.K. had a "light bruise" by her eye. Bedard testified that she took the photograph of H.K. which was introduced into evidence. Based on her investigations, Bedard believed H.K. had been physically abused by appellant. Bedard further testified the photograph of H.K. did not show the injury clearly, and that sometimes bruises and injuries are difficult to see on a dark-skinned person such as H.K. Appellant did not testify or call any witnesses during the guilt/innocence phase of trial.


In his first point of error, appellant argues the evidence is factually insufficient because the photograph introduced of H.K. did not show any injuries, and witness testimony shows that if H.K. had any injuries at all, they were "very slight." The State responds the evidence is factually sufficient to support appellant's conviction. We agree with the State. In a factual sufficiency review, we determine whether a neutral review of all the evidence demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). The trial court, as fact finder in this case, was the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. Jones v. State, 944 S.W.2d 642, 647-48 (Tex.Crim.App. 1996). The State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly caused bodily injury to a child younger than fourteen years of age. See Tex. Pen. Code Ann. § 22.04 (Vernon 2003). "Bodily injury" means physical pain, illness, or any impairment of physical condition. See id. § 1.07(a)(8). The evidence shows H.K. sustained bodily injury when appellant hit her in the head. McSorley saw appellant hit H.K. on the head several times with his fist, and she also saw H.K.'s swollen and bruised face. Both Rowe and Boulton testified they saw H.K.'s swollen face and "knots" on her head. Bedard testified she took the photograph of H.K. on the day after the incident. Bedard also testified she saw a bruise over H.K.'s eye. H.K.'s medical records show that she sustained a facial contusion and facial swelling. Having reviewed all the evidence under the appropriate standard, we conclude the evidence is factually sufficient to support the conviction. See Johnson, 23 S.W.3d at 11. Accordingly, we overrule appellant's first point of error. In his second point of error, appellant contends the $500 fine contained in the trial court's judgment should be deleted because it was not orally pronounced at sentencing. The State agrees the judgment should be reformed to delete the fine. Appellant is entitled to have his sentence, including the assessment of any fines, pronounced in his presence. See Tex. Code Crim. Proc. Ann. art. 42.03, 1(a) (Vernon Supp. 2003); Abron v. State, 997 S.W.2d 281, 282 (Tex.App.-Dallas 1998, pet. ref'd). When there is a variation between the oral pronouncement of the sentence and the written memorialization of the sentence, the oral pronouncement controls. See Coffey v. State, 979 S.W.2d 326, 329 (Tex.Crim.App. 1998). In this case, the trial court did not orally pronounce a fine when sentencing appellant. Thus, the judgment incorrectly includes a $500 fine. We sustain appellant's second point of error. We have the power to modify incorrect judgments when we have the necessary information to do so. See Tex.R.App.P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd). Accordingly, we modify the trial court's judgment to delete the fine. As modified, we affirm the trial court's judgment.

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