Case Number: 14-16-00877-CR

Judge: Kevin Jewell

Court: Fourteenth Court of Appeals - Texas Courts

Plaintiff's Attorney: David P. Bosserman and Jeri Yenne

Defendant's Attorney: Cary Faden

Description: A Brazoria County grand jury indicted appellant for the offense of assault involving family violence as a repeat offender. The State alleged that appellant assaulted his girlfriend, Ashley, with whom appellant had a dating relationship. The indictment further alleged that appellant was previously convicted of assault against a family member and assault against a member of the household. Appellant pleaded “not guilty” to the charged offense, and the case proceeded to trial. Ashley testified at trial. Ashley told jurors she and appellant dated for three years, and they have a two-year-old son. During the afternoon of the alleged assault, Ashley and appellant were outside, and she brought up “a topic that he didn’t like.” Appellant “attacked” Ashley and “[p]hysically hurt” her. It “happened so fast” that Ashley did not remember exactly what occurred, but she thought he hit her in the face. At the time, Ashley was high on methamphetamine, but she claimed to be lucid.1 Two Freeport Police Department officers responded to a 911 call. Officer Bruce Houston testified that Ashley was “very emotional, crying, very upset” when he arrived. Ashley told him that her boyfriend, appellant, hit her with “his fist, his hands . . . [i]n the face, to the extent it knocked her down.” Blood was present on Ashley’s face and leg. Officer Curtis Land testified that Ashley was “hysterically crying” and had “some injuries to her face, some injuries to her body, her elbows, legs.” Ashley told Officer Land that she had argued with appellant, and then appellant assaulted her.

1 At the time of trial, Ashley was serving 180 days in county jail for possession of methamphetamine.
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Both Officer Houston and Officer Land testified that Ashely did not appear intoxicated when they spoke to her. Another witness, Jim, who knew neither appellant nor Ashley, testified that he was working on his truck when he heard a scream. Jim looked up and saw a man pushing a woman against a car and hitting her in the face. The assailant slammed the woman against the car, knocked her to the ground, and kicked her four or five times. The assailant then “took off” on a bicycle. Jim identified a photo of Ashley as the “lady who [got] assaulted that day.” On cross-examination, appellant’s attorney attempted to discredit portions of Jim’s testimony. Jim’s written statement to police did not indicate that Jim saw the assailant punch the woman in the face. Appellant’s attorney also highlighted alleged discrepancies in Jim’s description of the assailant provided to appellant’s investigator, specifically as to the assailant’s height and appearance. Because appellant was previously convicted of an assault involving family violence, the charged offense was elevated to a felony.2 The jury found appellant guilty of the charged offense. Appellant then pleaded “true” to four enhancements, and the jury assessed appellant’s punishment at forty years’ confinement. Appellant now appeals his conviction.
Analysis
A. Legal Sufficiency of the Evidence In his first issue, appellant challenges the legal sufficiency of the evidence to support his conviction.

2 See Tex. Penal Code § 22.01(b)(2)(A). As discussed in more detail below, appellant stipulated to the prior conviction.
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We apply a legal-sufficiency standard of review in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). Under this standard, we examine all the evidence adduced at trial in the light most favorable to the verdict to determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Temple, 390 S.W.3d at 360; Criff v. State, 438 S.W.3d 134, 136-37 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d). This standard applies to both direct and circumstantial evidence. Criff, 438 S.W.3d at 137. Accordingly, we will uphold the jury’s verdict unless a rational factfinder must have had a reasonable doubt as to any essential element. Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009); West v. State, 406 S.W.3d 748, 756 (Tex. App.— Houston [14th Dist.] 2013, pet. ref’d). A person commits misdemeanor assault if he intentionally, knowingly, or recklessly causes bodily injury to another. Tex. Penal Code § 22.01(a)(1). Such assault is elevated to a third-degree felony if the offense is committed against a person whose relationship to or association with the defendant is described by, inter alia, section 71.0021(b) of the Family Code—i.e., if the actor and alleged victim are in a dating relationship—and it is shown that the defendant has been previously convicted of, inter alia, assault involving family violence. Id. § 22.01(b)(2)(A). The Family Code defines “dating relationship” as “a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature.” Tex. Fam. Code § 71.0021(b). Thus, to establish that appellant committed the offense of assault on a person with whom he had a dating relationship, as charged in the indictment, the State was required to prove that appellant intentionally, knowingly, or recklessly caused bodily injury to Ashley and that Ashley and
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appellant were in or previously had a continuing relationship of a romantic or intimate nature. See Baldit v. State, 522 S.W.3d 753, 759 (Tex. App.—Houston [1st Dist.] 2017, no pet.). On appeal, appellant argues that “[c]learly, it was Appellant’s trial strategy that . . . he was not present during the alleged assault,” and that no rational jury could find beyond a reasonable doubt that appellant had any intent to commit the charged offense. Thus, appellant challenges the sufficiency of the evidence to support a finding of two elements of the charged offense: identity and mens rea. We address each in turn. 1. Is there sufficient evidence to support identity? The State may prove a defendant’s identity by either direct or circumstantial evidence, coupled with all reasonable inferences from that evidence. See Gardner v. State, 306 S.W.3d 274, 285 (Tex. Crim. App. 2009). Testimony of a single eyewitness can support a conviction. See Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971); Price v. State, 502 S.W.3d 278, 281 (Tex. App.—Houston [14th Dist.] 2016, no pet.). Ashley’s positive identification of appellant as the person who assaulted her is legally sufficient to support the jury’s verdict. See Bowden v. State, 628 S.W.2d 782, 784-85 (Tex. Crim. App. 1982) (a complainant’s credible identification of the defendant constitutes legally sufficient evidence to support a jury verdict); see also Bradley v. State, 359 S.W.3d 912, 917-18 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d) (testimony of complainant was sufficient evidence of identification). While Jim identified Ashley as the victim, he never identified appellant as the assailant. Jim did, however, testify that he had told appellant’s investigator that the assailant was a black man, who was between 5’11” to 6’1” and between 190 to 210
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pounds. Appellant did not testify during the guilt-innocence phase of trial, but his attorney told the jurors during closing argument that appellant is “much shorter than that, much heavier.” To the extent that Jim’s testimony revealed any discrepancies between Jim’s description of the assailant and appellant’s physical appearance at trial, the jury resolved those inconsistencies in reaching its verdict. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (because the jury is the sole judge of the witnesses’ credibility and of the weight given their testimony, appellate court resolves any evidentiary conflicts or inconsistencies in favor of the verdict); see also Williams v. State, 525 S.W.3d 316, 322 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d) (“We presume that the jury resolved any inconsistencies in the evidence in favor of the verdict.”) (citing Murray v. State, 457 S.W.3d 446, 448-49 (Tex. Crim. App. 2015)). We defer to the jury’s resolution. Appellant relies on his testimony during the punishment phase, when he disputed any involvement in the assault.3 However, in evaluating the legal sufficiency of the evidence to support a “guilty” verdict, we consider only the evidence and testimony before the jury during the guilt-innocence phase of the trial. Barfield v. State, 63 S.W.3d 446, 450 (Tex. Crim. App. 2001) (after a bifurcated trial before a jury on a plea of “not guilty,” reviewing court’s consideration of the evidence “is necessarily limited to that evidence before the jury at the time it rendered its verdict of guilt”) (internal quotation omitted). “Absent a judicial confession by the defendant, evidence from the punishment phase of a trial will not be considered in determining the sufficiency of the evidence to support a conviction.” Munoz v. State, 853 S.W.2d 558, 560 n.3 (Tex. Crim. App. 1993).

3 During the punishment phase, appellant testified that he “had nothing to do with it,” and that he believed “there was someone [else] there with [Ashley].”
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Viewing all the evidence presented to the factfinder in the light most favorable to the verdict, we conclude that a rational jury could have found beyond a reasonable doubt that appellant committed the charged offense. Bowden, 628 S.W.2d at 78485; Bradley, 359 S.W.3d at 917-18. 2. Is there sufficient evidence that appellant intentionally, knowingly, or recklessly caused bodily injury to Ashley? Assault by causing bodily injury is a “result-oriented” offense. Darkins v. State, 430 S.W.3d 559, 565 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d). Thus, the State must prove that appellant caused the result—i.e., caused bodily injury to Ashley—with the requisite culpable mental state. Id. Here, the charged offense required proof that appellant intentionally, knowingly, or recklessly caused bodily injury to Ashley. See Tex. Penal Code § 22.01(a)(1). A person acts intentionally, or with intent, with respect to a result of his conduct when it is his conscious objective or desire to cause the result. Id. § 6.03(a). A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. Id. § 6.03(b). A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the result will occur. Id. § 6.03(c). The Penal Code defines “bodily injury” as “physical pain, illness, or any impairment of physical condition.” Id. § 1.07(a)(8). A defendant’s culpable mental state may be inferred from the defendant’s acts, words, and conduct. Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995). The requisite culpable mental state may also be inferred from the extent of injuries to the complainant, the method used to produce the injuries, and the relative size and strength of the parties. Herrera v. State, 367 S.W.3d 762, 771 (Tex. App.—Houston [14th Dist.] 2012, no pet.).
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Ashley testified that appellant hit her in the face and physically hurt her. Ashley was bleeding from her face and legs. Her nose bled as a result of “falling on the ground or being pushed into the car.” Jim, who witnessed the assault, testified that he saw a man strike a woman—whom he identified as Ashley—in the face with his hand and knock her to the ground; this account of the assault corroborated Ashley’s account. Officers Houston and Land testified that Ashley told them that her boyfriend had hit her, and they both observed bloody injuries on Ashley’s body. The State introduced eight photographs of Ashley taken after the assault, showing Ashley with a bloody nose, as well as bruising and scratches along her upper arms and her legs. A reasonable jury could infer from appellant’s conduct and Ashley’s injuries that appellant intended to, or was aware that his conduct was reasonably certain to, injure Ashley. See Patrick, 906 S.W.2d at 487 (jury can infer defendant’s culpable mental state from his conduct); Herrera, 367 S.W.3d at 771 (jury can infer defendant’s mental state from complainant’s injuries and the method used to produce the injuries); see also Hill v. State, 392 S.W.3d 850, 854 (Tex. App.—Amarillo 2013, pet. ref’d) (jury could have found appellant struck girlfriend with his hand, thus intentionally, knowingly, or recklessly causing bodily injury, based on complainant’s testimony, police officer’s description of injuries, and photographs of injuries). Viewing all the evidence presented to the factfinder in the light most favorable to the verdict, we conclude that a rational jury could have found beyond a reasonable doubt that appellant committed the assault against Ashley with the requisite mental state. See Baldit, 522 S.W.3d at 760. * * * We overrule appellant’s first issue.
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B. Elevation of the Charged Offense In his second issue, appellant contends that, should we overrule his first issue, this court should modify the judgment to reflect a conviction of misdemeanor, not felony, assault and remand for a new punishment hearing. While assault is ordinarily a misdemeanor offense, it may be elevated to a third-degree felony in certain circumstances. See generally Tex. Penal Code § 22.01(b). As relevant here, the charged offense would be classed as a felony offense upon proof of a prior family-violence assault conviction. See id. § 22.01(b)(2)(A). Ordinarily, when the State alleges a prior conviction for jurisdictional purposes, a defendant may stipulate to the allegation and prevent the State from adducing evidence of the prior conviction other than the stipulation. Hollen v. State, 117 S.W.3d 798, 802 (Tex. Crim. App. 2003). And when, as here, the State alleges more convictions than necessary to establish jurisdiction, “a defendant may stipulate to the statutorily required number of prior convictions necessary to establish jurisdiction.”4 Donald v. State, --- S.W.3d ---, 2017 WL 4156880, at *7 (Tex. App.—Houston [14th Dist.] 2017, no pet. h.). Stipulations reduce the possibility of unfair prejudice that might occur if the jury misused evidence of a prior conviction— which is generally admissible to prove felony jurisdiction—in determining a defendant’s guilt of the present, charged offense. See Martin v. State, 200 S.W.3d 635, 638 (Tex. Crim. App. 2006). Further, as a strategy matter, when multiple prior convictions are alleged, defendants may have a motivation to stipulate to one prior conviction so as to prevent the jury from hearing evidence supporting more than one prior conviction.

4 The indictment alleged appellant was twice convicted of family-violence assault.
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On the first day of trial, appellant signed a stipulation, admitted into evidence without objection, which provided, in relevant part: The Defendant consents to a written stipulation of the evidence regarding the existence of one previous conviction necessary to prosecute an offense of Assault Family Violence as a felony offense in a district court. The Defendant hereby stipulates to having been previously, finally, and lawfully convicted one time of an offense relating to an offense against a member of the Defendant’s family or household for Family Violence under section 22.01 of the Texas Penal Code under case number 1375593 as alleged in the indictment and read to the jury. On appeal, appellant argues that his stipulation was “too vague to be sufficient,” but he does not identify any purported deficiency or vagueness. Appellant’s stipulation to the prior conviction is sufficient to support elevation of the charged offense to a felony. See Tex. Penal Code § 22.01(b)(2)(A); see also, e.g., Bryant v. State, 187 S.W.3d 397, 402 (Tex. Crim. App. 2005) (defendant’s stipulation to prior offense waived any challenge to the absence of proof of the prior offense). He cannot now complain that the State failed to prove an element “to which he confessed.” Bryant, 187 S.W.3d at 402 (internal quotation omitted). We overrule appellant’s second issue.

Outcome: Having overruled appellant’s two issues, we affirm the trial court’s judgment.

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