Austin v. State

Full title: REGINALD WAYNE AUSTIN, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Nov 30, 2009

No. 05-08-00879-CR (Tex. App. Nov. 30, 2009)

Opinion

No. 05-08-00879-CR

Opinion Filed November 30, 2009. DO NOT PUBLISH. TEX. R. APP. P. 47.

On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F-08-50259-Q.

Before Justices MOSELEY, FITZGERALD, and LANG-MIERS.

OPINION

Opinion By Justice LANG-MIERS.

Appellant Reginald Wayne Austin was convicted of felony assault involving domestic violence. The jury found appellant guilty and assessed punishment, enhanced by two prior felony convictions, at twenty-five years in prison. Appellant raises three issues on appeal arguing that the evidence was legally and factually insufficient to support his conviction, and that the judgment should be modified to correct a clerical error. We modify the judgment to correct a clerical error and affirm the trial court's judgment as modified.

Background

The complainant, V.J., started dating appellant in 2006. On January 5, 2008, the date of the offense, appellant and V.J. were home together at their apartment in Dallas. V.J. testified that when she started getting ready to attend a party at a neighbor's apartment, appellant became jealous because he was not invited to the party. To prevent V. J. from going to the party, appellant took her keys and purse and left the apartment. V.J. waited about ten minutes and then decided to leave the apartment. When she walked outside, she saw appellant standing near the parking lot. Because she did not want appellant to follow her, V.J. sat down on the steps of the apartment. Appellant approached V.J. and started "badgering" her to go back into the apartment. V.J. refused so appellant grabbed the collar of her coat and dragged her on her back into the apartment. V.J. was afraid and screamed for help because she knew the apartment complex was patrolled by police. Once inside the apartment, appellant dragged V.J. on her back from the living room towards the bedroom in the back of the apartment. Appellant told V.J. to stop screaming and, that if he went to jail, he was going to kill her. To get her "to shut up," appellant let go of V.J.'s jacket and slapped her with an open hand across her forehead. V.J. stopped screaming. V.J. got up and walked to the bedroom while appellant pushed and shoved her. Appellant pushed V.J. down on the bed and they heard a knock on the door. V.J. started yelling for help and appellant went to answer the door. Police kicked in the apartment door before appellant could open it. V.J. declined the offer of medical attention; but she saw from looking in the mirror that she had red bruising on her face in the same place where appellant had hit her. V.J. identified State's Exhibit 3, which was admitted into evidence without objection and shown to the jury, as a photograph of her taken by police that showed the injury she sustained. Although she pointed out the location of her injury for the jury, V.J. also testified that the redness from her injury was easier to see in person than on the photograph. V.J. testified that she drank two beers on the date of the offense. She did not know whether appellant had consumed any alcohol or taken any drugs that day. During cross examination and redirect, V.J. admitted that she had smoked crack cocaine a couple of times a week for approximately five years, but she repeatedly denied smoking crack cocaine on the date of the offense. She also testified that she had not smoked crack cocaine for over sixty days prior to her testimony in this case. V.J. denied that appellant was actually trying to stop her from leaving their apartment to buy more crack cocaine, or that she started screaming for no reason because she wanted appellant to be arrested. V.J. also testified that she called police on appellant every time he beat her up, which was "[a] lot," or "at least once every two or three weeks." She testified that prior to the incident giving rise to the assault charge in this case, appellant previously choked her, slapped her, kicked her, bit her, and smothered her. V.J. also stated, however, that she is not surprised that there were no other assault incident police reports from her home. V.J. explained that she did not press charges against appellant after any of the prior assaults because he apologized every time and told her he would not do it again, and she believed him. Dallas police officer Otha Hampton, who worked part time as a security officer at the couple's apartment complex, also testified for the State. He testified that he and his partner were patrolling the complex on foot on January 5, 2008, when they heard a woman scream loudly. They traced the screams to the couple's apartment and knocked several times. They could hear V.J. inside yelling for help, so Officer Hampton kicked in the door. When appellant approached them they drew their guns and told him to get on the ground. V.J. came out from the back room and told police that appellant hit her and wanted to kill her. She was crying and "looked like she had been in a tussle." She had slight redness or bruising on her face. Officer Hampton testified that police photographed V.J. because it is standard protocol to photograph a visible injury. On cross examination he acknowledged that (1) two police reports prepared in connection with this case say that V.J. told police that appellant hit her with his fist, as opposed to with an open hand, and (2) one report indicates that V.J. told police that appellant was in the parking lot, as opposed to the apartment, when appellant took her keys and purse. Officer Hampton also testified that he did not prepare either report. Appellant's wife also testified for the State. She testified that she and appellant were married in 2000 but separated shortly thereafter. At the time of appellant's trial in this case they were still married but had not lived together for years. Appellant's wife testified that, with respect to appellant's conviction in 2003 for the assault involving domestic violence that was listed in appellant's indictment, she was the complainant who was assaulted by appellant in that case, and she and appellant were married at the time of the assault. Appellant did not testify or present any other witnesses to testify during the guilt-innocence phase of his trial. After deliberations, the jury found him guilty of assault as alleged in the indictment. At the punishment phase of his trial, appellant pleaded not true to two enhancement paragraphs alleging that appellant was previously convicted of the felony offenses of (1) unlawful possession of a firearm by a felon and (2) possession of a controlled substance. After witnesses testified for both sides, the jury found both enhancement paragraphs true and assessed punishment at twenty-five years in prison.

Applicable Law

Under the penal code, a person commits third-degree felony assault if the person intentionally, knowingly, or recklessly causes bodily injury to:

a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code [and] it is shown on the trial of the offense that the defendant has been previously convicted of an offense under this chapter, Chapter 19, or Section 20.03, 20.04[,] 21.11, or 25.11 against a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code[.]

Tex. Penal Code Ann. § 22.01(a)(1), (b)(2)(A) (Vernon Supp. 2009).¹

Analysis Legal Sufficiency of the Evidence

In his first issue, appellant argues that the evidence is legally insufficient to support a finding that he caused bodily injury to V.J. because V.J., the only eyewitness, "lacks credibility and has a history of making allegations against [a]ppellant that are unsubstantiated." More specifically, he notes that (1) V.J. admitted that she was addicted to crack at the time of the assault, (2) V.J. admitted that she had consumed two beers earlier that day, (3) none of V.J.'s accounts of being assaulted by appellant, including the assault for which he was convicted in this case, was substantiated by another witness, and (4) appellant was "undisputedly cooperative" with police after they arrived. We apply well-known standards when reviewing a challenge to the legal sufficiency of the evidence. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Laster v. State, 275 S.W.3d 512, 517-18 (Tex. Crim. App. 2009). We view all of the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Laster, 275 S.W.3d at 517. We do not re-weigh the evidence or substitute our judgment for that of the fact-finder. See id. The fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.). V.J. testified that appellant dragged her into and through their apartment and hit her across the face. She pointed out to the jury the location of her injury on the photograph introduced into evidence. Appellant's wife also testified that he was previously convicted for assaulting her after they were married. Appellant does not dispute the nature of his relationship with either woman. Instead, he apparently contends that V.J.'s testimony was rendered legally insufficient because she admitted to using illegal drugs and alcohol around the time of the assault. Appellant also apparently contends that V.J.'s testimony was legally insufficient because appellant cooperated with police once they arrived. We disagree; and we note that appellant does not cite any authority to support either contention. Viewing the evidence in the light most favorable to the jury's verdict, we conclude that a rational jury could have found the elements of third-degree felony assault beyond a reasonable doubt. As a result, we conclude that the evidence is legally sufficient to support the verdict in this case. Cf. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (testimony of only eye-witness legally sufficient to support conviction for capital murder). We overrule appellant's first issue.

Factual Sufficiency of the Evidence

In his second issue, appellant argues that the evidence is factually insufficient to support his conviction. Specifically, he argues that the evidence in this case is "scant and inconsistent" because (1) V.J.'s account of events was "riddled with inconsistencies" about where she was when appellant hit her and whether he hit her with an open hand or a closed fist, (2) V.J. admitted she was addicted to crack at the time of the assault, (3) V.J. never "filed assault charges" for appellant's previous assaults, (4) V.J. admitted to police who responded to a prior call that she had been smoking crack cocaine at the that time, was tired of appellant being there, and wanted police to make appellant leave, and (5) appellant "cooperated completely with the police when they responded in this case and demonstrated no signs of having been involved in the supposed assault against complainant." When reviewing a challenge to the factual sufficiency of the evidence, we begin by assuming that the evidence is legally sufficient under Jackson. Laster, 275 S.W.3d at 518. We consider all of the evidence in a neutral light and determine whether, although legally sufficient, (1) the evidence supporting the conviction is too weak to support the fact-finder's verdict or, (2) considering conflicting evidence, the fact-finder's verdict is against the great weight and preponderance of the evidence. Id. Although we afford less deference to the verdict during a factual sufficiency review, we are not free to override the verdict simply because we disagree with it and instead may find the evidence factually insufficient only when necessary to prevent manifest injustice. Id. During her testimony, V.J., testified unequivocally that appellant dragged her in and through the apartment and hit her across the face. Although she admitted to smoking crack cocaine for several years, including around the time of the assault, she was questioned extensively about her drug use, and about whether she was telling the truth concerning the events in question. Moreover, V.J.'s testimony was not the only evidence in this case. Among other evidence, the State also introduced a photograph of V.J.'s injury. After considering the evidence in a neutral light, we conclude that the evidence is not too weak to support the jury's verdict, nor does the great weight and preponderance of the evidence contradict the jury's verdict. Laster, 275 S.W.3d at 518. As a result, we conclude that the evidence is factually sufficient to support the jury's verdict. Cf. Allen v. State, 05-06-01585-CR, 2008 WL 2190979, at *1-2 (Tex. App.-Dallas May 28, 2008, no pet.) (not designated for publication) (testimony from complainant, who admitted she was addicted to crack at the time of the offense, and that "her memory was `not all that great' after years of continuous drug and alcohol abuse," factually sufficient to support defendant's conviction for sexual assault). We overrule appellant's second issue.

Judgment Modification

In his third issue, appellant argues that the judgment should be modified to correct the degree of offense in this case. Specifically, appellant notes that the judgment states that appellant was convicted of a first-degree felony, while the record reflects that appellant was charged with, and convicted of, a third-degree felony. The State agrees that the judgment should be modified to reflect that the offense in this case was a third-degree felony. This Court has the power to modify an incorrect judgment to make the record speak the truth 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). We modify the judgment to change the notation under "Degree of Offense" from "1ST DEGREE FELONY" to "3RD DEGREE FELONY."

Conclusion

We overrule appellant's first and second issues. We modify the trial court's judgment and affirm the trial court's judgment as modified.