Rodriguez
v.
State

Court of Appeals of Texas, Fifth District, DallasFeb 28, 2005
No. 05-04-00506-CR (Tex. App. Feb. 28, 2005)

No. 05-04-00506-CR

Opinion issued February 28, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the Criminal Court No. 10, Dallas County, Texas, Trial Court Cause No. MA03-72187-L. Affirmed.

Before Justices BRIDGES, RICHTER, and LANG.


OPINION


Rebecca Rodriguez appeals her assault conviction. Following a trial before the court, the trial court found appellant guilty and sentenced her to two hundred and ten days in jail, probated for eighteen months, and a $300 fine. In three issues, appellant argues the evidence is legally and factually insufficient to support her conviction, and the evidence is factually insufficient to support the trial court's implied rejection of her claim of self defense. We affirm the trial court's judgment. On March 30, 2003, Juanita Rodriguez went out to celebrate her forty-eighth birthday with her sisters Stella and Mary Ellen. At about 11:00 p.m., Rodriguez dropped off Mary Ellen and found she needed water for her car. Mary Ellen said she could get some water, but Rodriguez asked if Mary Ellen was sure her daughter, appellant, was not at the home. Rodriguez was cautious because she had a dispute with appellant involving CPS and the removal of appellant's child. Mary Ellen said appellant was not there, and Rodriguez went in and got some water. As Rodriguez was coming out of the bathroom, she saw appellant, who began cursing and calling Rodriguez "dirty names." Rodriguez put up her hand, said she did not want to argue with appellant, and went outside. Appellant followed and got in front of Rodriguez and started cursing her. Appellant's fourteen-year-old daughter and an unidentified male ran toward Rodriguez, and Mary Ellen asked her not to hit appellant. Rodriguez said she was not going to hit appellant because "I don't hit family." Nevertheless, appellant said she was going to "beat up" Rodriguez, and she hit Rodriguez in the face as she was walking away, knocking off Rodriguez' glasses. Appellant started kicking and hitting Rodriguez, and Mary Ellen grabbed Rodriguez from behind before falling and pulling Rodriguez down with her. Mary Ellen refused to let go of Rodriguez' arms as appellant and her daughter continued kicking and hitting Rodriguez. Appellant said, "I'm not going to be satisfied until I kill you, you fucking bitch." Rodriguez managed to get a hand free, and Mary Ellen finally let her go, causing appellant and her daughter to withdraw momentarily. However, appellant's daughter told her not to stop beating Rodriguez. Appellant continued hitting and kicking Rodriguez and pulling her hair. At some point, the attack ceased, and Rodriguez drove to Stella's house where she called her daughter and told her what happened. Rodriguez spent the night at Stella's house and reported the incident to police the next day. Rodriguez went to the emergency room where she was treated for a corneal abrasion she received in the attack. At trial, Rodriguez testified she continues to feel pain in her head where she was kicked. Appellant testified at trial that, after she discovered Rodriguez in the bathroom, she asked Rodriguez to leave but Rodriguez refused. Rodriguez grabbed appellant by her hair and pulled her outside where the two women "just started fighting." Appellant's daughter became involved in the fight, and appellant's mother tried to stop it. Appellant suffered a black eye, redness on her face, and scratches in the fight. According to appellant, she only defended herself and did everything possible to avoid a confrontation with Rodriguez. The trial court found appellant guilty of assault and sentenced her to two hundred and ten days in jail, probated for eighteen months, and a $300 fine. This appeal followed. In her first and second issues, appellant argues the evidence is legally and factually insufficient to support her assault conviction. In her third issue, appellant argues the evidence is factually insufficient to support the trial court's implied rejection of her claim of self defense. When we review the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App. 1991). The inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Turner, 805 S.W.2d at 427. In reviewing the factual sufficiency of the evidence, we are to view all of the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). We must determine whether a neutral review of all the evidence, both supporting and against the finding, demonstrates that the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also insufficient when contrary evidence is so strong that the beyond-a-reasonable doubt standard could not have been met. Id. When a defendant challenges the factual sufficiency of the rejection of a defense, the reviewing court reviews all of the evidence in a neutral light and asks whether the State's evidence taken alone is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence. Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003). The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). As such, the trier of fact may choose to believe or disbelieve all or any part of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986); McCray v. State, 861 S.W.2d 405, 407 (Tex.App.-Dallas 1993, no pet.). The factfinder is also permitted to make reasonable inferences from the evidence. See Stahle v. State, 970 S.W.2d 682, 686-87 (Tex.App.-Dallas 1998, pet. ref'd). A person commits the offense of assault if she intentionally, knowingly, or recklessly causes bodily injury to another. Tex. Pen. Code Ann. § 22.01(a)(1) (Vernon Supp. 2004-05). A person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force. Tex. Pen. Code Ann. § 9.31(a) (Vernon 2003). Here, Rodriguez testified appellant hit her in the face, hit and kicked her both before and after she was pulled to the ground, and pulled her hair. Rodriguez suffered a corneal abrasion in the attack, and continues to feel pain in her head where she was kicked. Although appellant testified Rodriguez dragged her outside by her hair before fighting with her, the trial court, as trier of fact, was free to disbelieve appellant and believe that appellant was the aggressor and Rodriguez the victim. See Sharp, 707 S.W.2d at 614; McCray, 861 S.W.2d at 407. We conclude this evidence is legally and factually sufficient to show appellant assaulted Rodriguez. See Jackson, 443 U.S. at 319; Zuniga, 144 S.W.3d at 484-85. Further, while appellant claimed she acted in self defense, we have reviewed the record and cannot conclude that the State's evidence was too weak to support the finding that appellant did not act in self defense or that the proof of appellant's guilt is against the great weight and preponderance of the evidence. See Zuliani, 97 S.W.3d at 595. We overrule appellant's first, second, and third issues. We affirm the trial court's judgment.